GERMANY LAW AND PRACTICE Contributed by: Dr. Clemens Tobias Steins, Dr. Michael Pfeifer, Dr. Daniel Grohs and Dr. Bianca-Lucia Vos, Hoffmann Eitle
A public interest exists in cases where the use right is required to provide a medicament for a serious illness that has either higher efficacy or fewer side effects than can be achieved with any other available medicament. Besides this specific provision, a court must generally consider whether circumstances exist under which the injunction would lead to hard - ship for the infringer or third parties, which is dis - proportionate to the plaintiff’s interest in exclud - ing those based on the intellectual property right granted to him. German courts apply this only in very exceptional cases, and in principle, it can - not replace the above action for a compulsory licence. 5.4 Damages It is common practice in German infringement proceedings only to request a declaration that damages are to be compensated and that the defendant must render accounts. Upon obtain - ing the rendering of accounts, the plaintiff can commence a follow-on lawsuit, claiming pay - ment of a specific amount of damages. Those damages can be calculated under Ger - man law according to the methods of: • lost profits; The plaintiff has discretion regarding the applied calculation method and can even apply different methods to different periods. Damages are only meant to compensate for a loss suffered, not to penalise. In general, German courts are conservative regarding the amount of damages awarded. • infringer’s profit; and • reasonable royalty.
It very rarely comes to a follow-on action on the amount of damages because the parties reach an out-of-court settlement once infringement has been established in a final decision or earlier because of a threatened or enforced injunctive relief. Therefore, the case law on the amount of damages is limited, so no industry-specific con - clusion can be drawn. 5.5 Legal Costs In its decision, the court will also decide which party will bear the legal costs of the case or, if the costs are to be shared, which share of the costs. The legal costs include, in particular, the court fees (advanced by the plaintiff) and the attorney fees of the adversary. Both depend on the value of the dispute, which the court also determines on the basis of the parties’ submissions or the court’s own findings of facts. In principle, the losing party pays the legal costs. However, a plaintiff must bear the legal costs of litigation if: • the defendant’s conduct did not give justified cause to resort to litigation; and • the defendant immediately acknowledges the claim. The plaintiff can avoid this risk by sending a warning letter, but it is necessary to decide on a case-by-case basis: • how likely an immediate acknowledgement is? • is such a quick win potentially worth bearing the legal costs? • what risks does sending a warning letter bring in a specific situation?
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