Germany has a bifurcated patent litigation system wherein the
issues of patent validity and patent infringement are dealt with in
separate courts.
Challenging the validity of a patent
After expiry of the nine-month period for filing an opposition,
the validity of a patent may be challenged by filing a nullity
action.
Nullity actions are dealt with by the Federal Patent Court
(Bundespatentgericht; BPatG)1 in the first instance,
where the case is heard by two legally qualified and three
technically qualified judges. The duration of first instance
proceedings is approximately 25 months.
First instance decisions may be appealed at the Federal Court of
Justice (Bundesgerichtshof, BGH) in the second instance, where a
specialised panel of five legally trained judges decides the case.
The duration of second instance proceedings is approximately 2 to 3
years.
