GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings Under German law, the appeal procedure is gov- erned by the same rules as the first instance pro- ceedings. However, new facts and arguments can only be introduced if specific requirements are met, as no “second trial” should be incen- tivised. 7.2 Type of Review In an appeal a limited review of the facts of the case and a full legal review can be done. The factual review is limited in view of the first instance court’s discretion on specific aspects of the case and in view of the court’s own fact find- ing (eg, hearing of witnesses), which the appeal court only replaces with its own fact finding in specific circumstances. The only costs arising before filing a lawsuit relate to the right owner’s costs for receiving advice from its lawyers. To the extent that this advice leads to a warning letter, the statutory costs, which are governed by the value of dis- pute, can be recovered from the adverse side if the conflict is decided in favour of the right owner. 8.2 Calculation of Court Fees Court fees are calculated depending on the value in dispute of the respective proceedings. This in turn depends on the value of the patent in dispute and/or the commercial interest of the right owner in stopping the alleged infringement. Usually, only a rough (“best guess”) figure is pro- vided, which is often not called into question by 8. Costs 8.1 Costs Before Filing a Lawsuit
pattern and legal principles applied are substan- tially similar or identical.
6. Remedies 6.1 Remedies for the Patentee
In infringement proceedings, the patent proprie- tor is entitled to injunctive relief, damages, the provision of information and the surrender and destruction of infringing products. The judge is bound by the patent proprietor’s requests and cannot award any further claims. These claims are enforced in separate enforcement proceed- ings and/or through the bailiff enforcement sys- tem. 6.2 Rights of Prevailing Defendants A prevailing defendant is entitled to reimburse- ment of the fees and their legal costs; the latter, however, is only limited to a statutory amount based on the amount in dispute. 6.3 Types of Remedies There are no different types of remedies for dif- ferent technical IP rights. All owners of IP rights are entitled to the claims described under 6.1 Remedies for the Patentee in the event of infringement. 6.4 Injunctions Pending Appeal If the patent is found to be valid and infringed in the first instance, this decision is provisionally enforceable, which in principle does not change even if an appeal is lodged against the first- instance decision. However, if the patent pro- prietor enforces the first-instance decision and this is later withdrawn on appeal, they are liable to compensate the defendant for the damage caused by the enforcement.
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