2 July 2020
This is not just due to the key importance of Germany as a European market but is also attributed to its pro-patentee legal system. In Germany, patent infringement proceedings are comparatively cost -effective and quick, with an injunction being a regular outcome. German patent litigation is bifurcated, with infringement and validity being tried on separate tracks. This has the consequence that there is no decision on patent validity taken in the infringement proceedings. Subject to a relatively high threshold, the infringement court will consider a potential stay of the infringement proceedings pending a parallel – customarily slower – validity attack, for example, opposition proceedings or nullity action. Bifurcation can thus have the effect of an “injunction gap,” whereby a permanent injunction is available and already enforceable, although pending validity proceedings against the patent have not yet been decided. Of course, the infringer is secured by potential damage claims and, indeed, the patentee would have to deposit a security for the preliminary enforcement of the first-instance judgment. Nevertheless, this “injunction gap” provides a considerable strategic advantage for the patentee.
An obligation to compensate damages resulting from patent infringement, which in Germany reflects actual damages only, can be awarded in the infringement trial. Further, the infringer has to render accounts on the infringing acts in the past. The information provided by the infringer will usually allow the patentee to calculate the amount of damages. Disputes about the actual amount of damages are either settled or handled in a separate court proceeding, usually again before the infringement court.
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