Patent Enforcement Under IP Law - Germany
With the implementation of the European Enforcement Directive 2004, it has made Germany an even more attractive place to patent litigation, as it improves the patentee's position when obtaining evidence of patent infringement.
Generally, European patents must be enforced separately in each of the contracting states, since Pan-European injunctions have become difficult to obtain since the European Court of Justice (ECJ) decided that national courts cannot decide on the infringement of a patent in a foreign country, especially if its validity has been challenged by the defendant. Due in part to Germany's commercial significance, Germany courts are extremely busy, handling between about European 700 to 1000 patent cases every year. Court proceedings in Germany are quick, the costs are reasonable and specialized courts produce a highly consistent case law. German courts are often chosen for cases where infringement can be proven on the basis of information that is publicly available from the defendant's own publications. However, cases are difficult to try because in principle, the plaintiff carries the burden of proving all facts from which it can be ascertained that all the patent is being used. German patent law formulates only one exception to this general principle, that is, if the subject matter of the patent is a process for the manufacture of a product that is novel. In this case, the burden of proofs shifts to defendant, who could be obliged if the court considers the plaintiff's evidence to be sufficient. Given that evidence when establishing the infringement of intellectual property right, Germany's practice is not regarded to be complying with the European Enforcement Directive 2004 which is still not implemented in Germany officially.
Opposing party's evidence:
According to Article 6 of the Directive, member states must ensure that, on application by a party which has presented enough and reasonable evidence to support its claims, specifying evidence that lies in the control of the opposing party, the competent judicial authorities may order that the opposing party present that evidence, subject to the protection of confidential information. So it is necessary that the plaintiff is able to identify the documents to be presented by the defendant and to substantiate a certain likelihood of patent infringement. The court may also order a third party, not directly involved in the proceedings, to present the requested evidence for the protection of confidential information, before issuing the order. The German courts are also already applying Article 7 of the Enforcement Directive which concerns the preservation of evidence and which complements the rights of inspection under Article 6. According to Article 7, member states must ensure that, even before the proceedings on the merit of the case begin, the competent judicial authorities may order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, on the application by a party claiming that their intellectual property right has been infringed or is about to be infringed along with sufficient and reasonable evidence, subject to the protection of confidential information.
Implementation of other provisions of the Enforcement Directive is also expected. For example, if the injured party demonstrates circumstances likely to endanger the recovery of damages, the courts may order the precautionary seizure of the movable and immovable property of the alleged infringer, including blocking their bank accounts and other assets, etc. The courts may order that appropriate measures be taken with regard to goods that have infringed an intellectual property right. Lastly, the Enforcement Directive considerably broadens the duties of information on the extent of an infringement, which may be imposed not only on the infringer but also on their suppliers, service providers and customers.
For any
queries relating to our services and costs, please feel free to
contact us at info@iprfirm.com.
IPR
FIRM.COM - Online IPR Law Firm, India – Trade Marks, Copyright Registration,
Delhi, India
| | |
(c) IPR Firm, 2007.
|
