GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
2.3 Courts With Jurisdiction In Germany, due to the bifurcated system, there are different courts handling the infringement and nullity cases, which have different jurisdic- tions. On the infringement side, and regarding the first instance, each German federal state ( Bundes - land ) has designated one district court ( Landger - icht ) as the competent court to hear matters relating to disputes on technical IP rights within such state. Among these courts, however, only a few courts frequently hear such matters and have, therefore, developed significant expertise in this field. These are the courts in Dusseldorf, Mannheim, Munich, and Hamburg (which, by no coincidence, are also the cities that now host the German local chambers of the Unified Patent Court (UPC)). Most conflicts relating to techni- cal IP rights are governed by lex loci delicti, so that the owner of such right is free to choose between the competent courts, if the infringe- ment occurs in the entire German territory (eg, by way of advertising on the internet). As such, most owners continue to choose among one of the aforesaid (four) courts. Still on the infringement side, the appeal is then filed with the Higher Regional Court ( Oberland - esgericht ) of the federal state in which the first instance case has been heard. A further appeal, which would be heard by the Federal Supreme Court ( Bundesgerichtshof ) is usually not allowed, unless the case touches upon fundamental questions of law. A request for exception per- mission of a further appeal ( Nichtzulassungs - beschwerde ) can still be filed with the Federal Supreme Court in relation to any appeal decision but is frequently rejected (unless for exceptional circumstances).
On the nullity side, separate invalidity attacks in court are heard at first instance by the FPC in Munich ( Bundespatentgericht ). The appeal is then heard by the Federal Supreme Court, with no possibility for a further appeal or any relating requests. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes There are no specialised bodies or organisations for the resolutions of disputes relating to techni- cal IP rights in Germany. Some courts, such as the Munich Court, offer court-mandated media- tion proceedings as an alternative to a formal court decision. Also, there are some organisa- tions offering arbitration if the parties agree to their rules, such as the German Arbitration Insti- tute (DIS). 2.5 Prerequisites to Filing a Lawsuit In order to file for injunctive relief in the German courts, the owner of the technical IP right must be duly recorded in the relevant registers. Other than that, no formal prerequisites (such as pre- litigation letters, pre-litigation mediation) exist. A formal warning letter might, however, help to avoid some specific issues, which may occur: • if the infringer immediately acknowledges all claims (which may then, in the absence of a prior warning, leave the right owner with all procedural costs); or • if an ex parte order is being sought (in which case the court may consider the lack of a prior notification to deprive the infringer of their constitutional right to be heard). 2.6 Legal Representation In Germany, infringement cases in the civil courts must be handled by a lawyer admitted to the bar in Germany, whereas invalidity cases can
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