GERMANY LAW AND PRACTICE Contributed by: Dr. Clemens Tobias Steins, Dr. Michael Pfeifer, Dr. Daniel Grohs and Dr. Bianca-Lucia Vos, Hoffmann Eitle
1.13 Use of Experiments Experiments are not treated differently than other forms of factual assertions. Parties may introduce the results of experiments into the pro - ceedings in the form of written (expert) reports. The individuals who conducted the experiments may also be called to give witness evidence if disputed by the other side. Further, court-appointed experts may be requested to conduct certain experiments to answer the questions referred to them. 1.14 Discovery/Disclosure As stated in 1.7 Pre-Action Discovery/Disclo- sure , there is no pre-action discovery or disclo - sure, and neither is there in the proceedings. It is the plaintiff’s burden to substantiate and offer evidence for the facts underlying its legal claim. On the other hand, a party may utilise informa - tion from a variety of sources. Even information obtained illegally may, in principle, be used. In principle, even illegally obtained information may be used. Courts apply only limited exceptions, eg, if the manner in which the information was unlawfully obtained violated a person’s constitu - tionally protected fundamental rights. Moreover, the burden on the defendant to respond at a matching level of substantiation and not to lie and mislead in practice compensates for the lack of pre-action discovery or disclosure. The GCCP allows a party to request the court to compel the opposing party to produce a spe - cific document that is essential for the request - ing party. However, this process requires a high degree of specificity, often proving unhelpful in practice.
ered by the court when decision on whether to grant an injunction. However, a defendant must submit their validity challenge early – well before the oral hearing date in preliminary proceedings – if they want the infringement court to consider the likelihood of the patent being invalidated in its decision on an injunction. 1.12 Experts Expert evidence plays only a limited role in Ger - man proceedings, as courts prefer to decide a dispute based on the parties’ written submis - sions. Questions of claim interpretation and validity of a patent are considered legal ques - tions for the court to decide. In infringement proceedings, parties often rely on statements and reports of private experts to verify and support the credibility of their asser - tions. Such evidence is, however, given no other procedural status than regular submissions by representatives unless the parties’ experts are proposed and summoned as witnesses. Party experts are not subject to particular duties and obligations to the court. Intentionally false state - ments and misleading the court can have conse - quences under general criminal law rules. Upon request of the parties or its own assess - ment, a court may appoint a neutral expert as formal evidence for answering any specific factual question it considers relevant for decid - ing the dispute (Section 402 et seqq. Code of Civil Procedure). Court-appointed experts are required to maintain impartiality and to respond to the specific question posed by the court. Selecting experts, as well as preparing and dis - cussing the expert report, typically in further oral proceedings, considerably delays a decision on the dispute. In preliminary proceedings, the court relies entirely on the parties’ submissions; court-appointed experts are not used.
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