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Patent litigation in Germany to become even more attractive:
Patent litigation in Germany to become even more attractive: Federal Supreme Court to implement second patent senate speeding up proceedings.
Approximately 60% of all European patent litigation suits are conducted before German courts. Reasons for this remarkable success of German courts under patent owners all over the world are various:
Of course, Germany is the most important market in Europe. As a consequence, the outcome of a suit is of considerably higher importance to the patentee in view of ceasing and desisting and possible damages than in smaller markets. Depending on the type of attacked embodiment a judgement in favour of the patentee can also affect other markets of minor importance if it is not possible or uneconomical for the infringer to deliver different products to different markets.
German courts are highly experienced in dealing with patent infringement suits. The already comparatively large number of patent infringement suits is dealt with by a small number of only 12 specialized Courts of first instance. Just three of them, the courts of Düsseldorf, Mannheim and Munich, each with two patent chambers, deal with more than 80% of patent infringement suits in Germany. It goes without saying that this leads to an outstanding expertise of the small number of judges at these chambers which is reflected in a high quality and reliability of their judgements.
If a European patent is concerned further suits in other member states of the European Patent Convention often turn out not to be necessary. Due to the high reliability of decisions both, the patentee and the possible infringer often take the German suit as a kind of "test case" and settle the "European" case out of court to save costs.
Despite the enormous number of cases dealt with patent infringement chambers usually reach a first instance decision in only about a year's time, often even faster, calculated from the date of filing the complaint. In comparison to other jurisdictions, especially in Europe, this is unrivalled fast. Apart from general rules of German code of civil procedure the main reason for this is a remarkable particularity of German patent infringement suits: The patent chambers are not allowed to declare a patent invalid. They have to accept the decision of the patent office to grant the patent which can only be set aside by a final decision in separate nullity proceedings launched before the Federal Patent Court (next and final instance in so far: Bundesgerichtshof (Federal Supreme Court)). If the defendant introduces a pending nullity suit in the infringement proceedings, patent chambers may only stay the procedure based on a weighting of chances of success of the nullity suit on the one hand and disadvantages of a possible stay of procedure for the patentee on the other hand. As a general rule, at least in first instance, this weighting leads to a result (and, as a consequence, an enforceable judgement) in favour of the patentee. On the other hand if already an infringement can be denied, a weighting is unnecessary and a quick decision in favour of the defendant can be reached. This separation of infringement and validity questions which cannot be found in any other state of significant importance therefore is the main reason for the great efficacy and speed of German infringement proceedings. Since the validity of the patent usually does not play a significant role in first instance patent infringement suits, conducting such a suit in Germany is highly attractive especially for patentees!
During the past years, however, the duration of nullity proceedings - which have to be finished before a final instance judgement in the infringement proceedings can be pronounced - became an increasing problem. 5 years, calculated from the filing of the nullity action at the Federal Patent Court until the pronounciation of the last instance judgement, became the usual duration of such nullity proceedings. The reason for the increasing duration of nullity proceedings was their increasing number which could not be handled any more by the few members of the Xth senate of the Bundesgerichtshof. As of 1 January 2009, the Bundesgerichtshof has reacted and implemented a second, the Xath senate, in charge of patent matters. It can be expected that this will shorten the duration of German patent nullity suits significantly. As a consequence, it will also be possible to reach a final decision in parallel patent infringement suits much sooner. The unrivalled position of Germany as the place of first choice for patent infringement suits in Europe seems thus to be secured for the foreseeable future.
Wildanger Kehrwald Graf v. Schwerin & Partners is a German law firm focused entirely on the area of intellectual property protection. It was founded 40 years ago by Günther Wildanger, one of the most experienced patent litigation attorneys in Germany. Ever since, the firm has played an important role in establishing Germany, in particular Düsseldorf, as a leading jurisdiction for patent litigation. At a cautious estimate, the partners probably represented parties in more than 1,000 patent infringement suits, very often with international backgrounds, and in many cases with the greatest economic significance. Our clients not only benefit from our great experience. They can rely on the partner representing them to take a very intensive, personal and trustworthy interest in them. Because we know that this is what it takes to be successful in patent litigations.
Wildanger Kehrwald Graf v. Schwerin & Partners count among their clients some of the most important global players from all the important industrial nations in Europe and Asia and, of course, the U.S. We have represented parties from nearly all areas of industry, technology and science, e.g. automotive, machine and electrical engineering, electronics, semi-conductor industry, biotechnology, the chemical, pharmaceutical and medical industries, computers, telecommunication.
Dipl.-Phys. Elmar Knauf
Attorney-at-law (Germany)
Attorneys-at-law Wildanger Kehrwald Graf v. Schwerin & Partners