Draft for simplifying, modernizing German Patent Law

The German Federal Ministry of Justice and Consumer Protection (“BMJV”) has published a discussion draft concerning a Second Law for Simplifying and Modernizing the Patent Law...

On January 14, 2020, the German Federal Ministry of Justice and Consumer Protection (“BMJV”) has published a discussion draft concerning a Second Law for Simplifying and Modernizing the Patent Law (“Entwurf eines Zweiten Gesetzes zur Vereinfachung und Modernisierung des Patentrechts”).

The proposed changes to the German Patent Law (GPL) are directed, besides formalities, to the following three major aspects:

1. The invalidation procedure at German Federal Patent Court (with appeal to German Federal Court of Justice) shall be accelerated, with the aim of reducing the so-called “injunction gap”. The latter presently exists, in practice, because a first-instance injunctional relief is often granted in patent litigation procedures by a Civil Court authorized to handle patent dispute matters within one year after filing of the respective complaint. The aforementioned decision granting injunctional relief is immediately enforceable.

The validity of the patent, however, which cannot be challenged and dealt by the patent litigation Court, is not decided earlier than about two years after filing of an invalidation complaint at the German Federal Patent Court. As a consequence, there is a gap of about one year, at least, between the enforceable injunctional relief decision granted by a patent litigation district Court, and a first-instance-judgement of the Federal Patent Court in the invalidation case. This “gap” during which the patentee, against bond, is entitled to enforce the injunctional decision of the patent district Court, stopping all infringing activities of the alleged defendant, can be (ab-) used by the patentee as leverage in order to get a settlement of the litigation case, possibly with even worldwide/global economic effect, which is particularly favourable to the patentee. Some literature calls the aforementioned possibility as granted by the “injunction gap” in Germany an “invitation for blackmailing”, even.

According to the measures proposed by the above mentioned draft, a better synchronisation (in time) between invalidation and litigation procedures in Germany should be achievable. The public discussions since the issuance of the aforementioned draft on January 14, 2020, has shown that the aforementioned measures are widely welcome.

2. Furthermore, the draft law provides for a restriction of the presently practical “unconditioned” enforceability of injunctive relief. The aim is to create something like an “e-bay situation” in patent litigation in Germany, which means that, before an injunctional relief would become enforceable, the patent litigation Court would have to balance the interest of the patentee as well as the defendant as well as, possibly, of third parties. The formulation of such a restriction of the presently “absolute” right of the patentee to get injunctional relief is widely disputed, and no unanimous answer of any kind of industry is expected to be given soon.

3. With a third component, the draft tries to make the disclosure of trade secrets in patent litigation and invalidation procedures less “risky”, by giving the possibility to the courts and other institutions to have more in-camera-procedures and similar measures than in the past.

The draft law is only under discussion. It is entirely possible that the draft law does not come into its final form and is approved by both chambers of Parliament within the pending period of Parliament, lasting, maximum, until September 2021, however.