GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
also be handled by patent attorneys. In practice, both type of proceedings are usually handled by a team of at least one lawyer and one patent attorney, which can work in the same or differ- ent firms. 2.7 Interim Injunctions Interim injunctions (synonymous with “prelimi- nary injunctions” or PI) are available in Germany, if the following preconditions are met. • Infringement must be proven by means of present evidence (including affidavits). The case must not be too complex for a court’s assessment within the available timeframe. • Validity must be proven beyond reasonable doubt – eg, if it has survived opposition or nullity proceedings, or if it has been broadly licensed out without any relevant challenges from competitors. There has been a change in recent case law lowering, to some extent, the bar for this requirement. Also, depending on the venue, this requirement is handled differ- ently, thereby incentivising forum shopping. • Urgency needs to be shown by the right owner, which some courts interpret to require the filing of the PI request no later than one month after the right owner’s first possibil- ity to enforce the right (ie, existence of right, knowledge of infringement and infringer). While increasingly difficult due to constitutional concerns, there is also the possibility to obtain a PI ex parte – ie, without the infringer having been heard on their possible defence. This practice has largely been limited to cases of extreme urgency and potential harm, such as trade shows. 2.8 Protection for Potential Opponents A potential opponent can file a protective brief with the central register of protective briefs and
thereby reduce the risk of an ex parte interim injunction being issued against them. If a pro- tective brief has been filed, the court must hear the opposing party before issuing an interim injunction. This possibility only exists in interim injunction proceedings or at the UPC. In normal patent infringement proceedings, it is possible to apply for a stay of the proceedings if there is a high probability that the patent in dispute will be declared invalid in parallel nullity or opposi- tion proceedings. Against an action for injunc- tive relief, the potential infringer can raise the defence of disproportionality. In addition, in the case of standard essential patents (SEPs), the potential infringer has the option of asserting that the patent proprietor’s licence offer does not meet the FRAND requirements. 2.9 Special Limitation Provisions The statute of limitations for a patent infringe- ment in proceedings before a German court is based on the general statute of limitations rules. The standard limitation period is three years and begins at the end of the year in which the claim arose – ie, when the patent proprietor became aware of the infringement. 2.10 Mechanisms to Obtain Evidence and Information German patent law provides for inspection pro- ceedings in which a potentially infringing prod- uct can be examined at the request of the patent proprietor. The preparation of an expert opinion or the seizure of potentially infringing objects are also possible. The prerequisite for these pro- ceedings is, generally speaking, a probability of infringement. 2.11 Initial Pleading Standards A complaint in a German court must provide enough information for the court to be able to understand the allegation of patent infringe-
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