GERMANY Law and Practice Contributed by: Michael Rüberg, Daniel Herrmann and Christoph Angerhausen, Boehmert & Boehmert
the other side (as this would require an order to lay open books), and therefore followed by the court. 8.3 Responsibility for Paying the Costs of Litigation Under German law, the losing party is required to reimburse the winning party for court fees, expenses and attorneys’ fees. The latter are limited to a statutory rate based on the value in dispute. 9. Alternative Dispute Resolution 9.1 Type of Actions for Intellectual Property In Germany, due to the well-established and functioning court system, alternative dispute resolution is less common, and often not actively promoted by the courts. As an exception, the Regional Court of Munich I offers the possibility, in patent litigation cases, of mediation under the supervision of a trained arbitrator, usually a member of the other patent litigation chamber, who may be assisted by an arbitrator from the FPC. The procedure provides for two dates. The early first date is intended to serve as a preliminary assessment and to pro- vide an opportunity for settlement discussions, if necessary. For this purpose, the Landgericht München I offers patent mediation – ie, a con- ciliation procedure before a judge experienced in patent matters. The Munich procedure is also characterised by strict time limits: the number of pleadings and deadlines are agreed at the early first hearing and are generally adhered to. Often, the first-instance proceedings can be completed in less than a year.
As a matter of course, parties may enter their own arbitration framework or try different ways of dispute resolution, including private media- tion. This is often seen in cross-border cases, where foreign practice (eg, in the USA) can incentivise these mechanisms. 10. Assignment and Licensing 10.1 Requirements or Restrictions for Assignment of Intellectual Property Rights IP rights can be inherited and transferred with- out limitation or restriction, an exception thereto being the transfer of copyright during the crea- tor’s lifetime. The transfer of a patent application shall be recorded in the European and German Patent Registers at the request of an interested party, upon production of documents providing evidence of such transfer. A contract signed by the transferor offering the assignment and signed by the assignee accepting the offer can function as evidence. Further, an administrative fee is to be paid. In general, it is important to document a transfer of IP rights in writing. If challenged in infringement proceedings, the entitlement needs to be proven; thus, written assignment is the saf- est way. 10.2 Procedure for Assigning an Intellectual Property Right A contract signed by the transferor offering the assignment and signed by the assignee accept- ing the offer should be produced as evidence. For IP applications, this contract is filed with the office together with a writ requesting registration of the assignment in the register, and an admin- istrative fee is to be paid.
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