GERMANY LAW AND PRACTICE Contributed by: Dr. Clemens Tobias Steins, Dr. Michael Pfeifer, Dr. Daniel Grohs and Dr. Bianca-Lucia Vos, Hoffmann Eitle
The plaintiff must demonstrate a legal interest in the action if the patent has expired or lapsed. The same applies to opposition proceedings before the European Patent Office (EPO) and the GPTO. However, the latter has little practical rel - evance in the field of life sciences. It is very rare, at least so far, to file an application for a German national patent for life science inventions. Depending on the future experience with the Unified Patent Court (UPC), applicants may, however, wish to retain the possibility to litigate life science patents nationally by filing (also) nationally after the option to opt-out of newly filed European patent applications from the competence of the UPC has expired (probably in 2030). 1.2 Defendants/Other Parties to an Action German courts cast a wide net when it comes to patent infringers. Anyone who facilitates infring - ing activities in Germany, such as manufactur - ing, offering and putting the infringing product on the market, can be considered an infringer. In the life sciences field, defendants are primar - ily the manufacturers or importers who hold the marketing authorisation. Wholesalers and oth - ers may be addressed in warning letters but are rarely joined as defendants. A particularly interesting position in the German pharmaceutical market is held by a company called IFA GmbH. It is an information service provider for the pharmaceutical market. Spe - cifically, it maintains a database of all pharma - ceuticals distributed through pharmacies in Ger - many. The database, updated twice a month, is the basis (indirectly via providers of specialised software for pharmacies and other users) for all
pharmacies’ transactions with their customers and the pharmaceutical wholesalers who sup - ply them. IFA is, therefore, a gatekeeper in the German pharmaceutical market. It regularly finds itself under pressure from (generic) manufactur - ers on the one hand and patent proprietors on the other, including as a defendant in provisional injunction proceedings. 1.3 Preliminary Injunction Proceedings Although main infringement proceedings in Ger - many are relatively fast by international stand- ards (see below), provisional injunctions play an important role in life sciences litigation, especial - ly in the case of a generic launch in the presence of pertinent patents (launch at risk). The reason for this is the immediate and irreversible impact of generic competition on the originator prices in Germany and other countries that refer to the price in Germany. The provisional measures that can be requested are a cease-and-desist order and a seizure of infringing products. Requirements for a Provisional Injunction To obtain a provisional injunction, the petitioner must make it credible to the court that the patent is being infringed and that it would be unreason - able for the petitioner to be deferred to main pro - ceedings. The latter is a comprehensive assess - ment including the patent’s validity, urgency, and the parties’ respective interests. Infringement In practice, there are no particular differences between the provisional injunction and main proceedings with respect to infringement. The court must be convinced that the patent has been infringed or that the infringement is immi - nent. The experienced patent panels, especially in Dusseldorf and Munich, are used to handling
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