GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
4.3 Amendments in Revocation/ Cancellation Proceedings
liability for damages are decided in a first round of proceedings, the amount of damages is fixed in separate proceedings once information has been provided. It is worth noting that there is no pretrial discovery or discovery during the litiga- tion in Germany, so that all relevant commercial information used to calculate damages usually only becomes available post-trial, because of the information and accounting claims that the court may grant as part of its infringement judg- ment. 5.2 Decision-Makers In German law, no jury trial exists; every dispute is resolved by professional judges. In nullity proceedings, legal and technical judges decide jointly; in patent infringement proceedings, only legal judges decide. The parties have no influ- ence on who the judges are, which are arbitrarily assigned to a case. 5.3 Settling the Case The parties can settle the case at any stage during the proceedings without further formal requirements. If they need more time to do so, they can ask the court to stay the proceedings. Court-assisted mediation is only available in selected courts, such as the Munich Court, as set out in more detail at 2.4 Specialised Bodies/ Organisations for the Resolution of Disputes . 5.4 Other Court Proceedings German courts are not directly bound by prece- dents, but of course consider decisions by other German courts on similar questions of law. Foreign judgments also need to be considered by German courts, whereas the courts have wide discretion as to the extent to which they follow the arguments in these judgments. According to case law, they should, however, provide reasons for deviating from foreign judgments, if the fact
In both opposition and nullity proceedings, the proprietor may file one or more auxiliary requests with amended claims in order to defend their patent to a limited extent if maintenance as granted is not possible or unlikely. Any amend- ment must be supported by the original appli- cation and must not lead to an extension of the scope of the granted claim set. 4.4 Revocation/Cancellation and Infringement The court hearing the infringement case is only competent to decide on infringement. In con- trast, the FPC decides on the validity of a pat- ent (“bifurcation”). In order to reduce a possible time gap due to the bifurcation, rather strict time limits apply to the parties’ submissions in nullity proceedings. In addition, a preliminary qualified opinion should be issued within six months of service of the action on the defendant. The court hearing the infringement case may stay the infringement proceedings after a nullity action has been filed until the nullity action has been decided, as the latter takes precedence over the former. The decision to stay the infringe- ment proceedings is at the discretion of the infringement court. However, the court will only grant a stay if the patent is obviously invalid – eg, prima facie not novel. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights In principle, the provisions of the German Code of Civil Procedure (ZPO) apply, with no special set of rules governing only this type of proceed- ings. The remedies of injunction and the general
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