On Wednesday the Federal Cabinet launched the government draft for a “Second Law to Simplify and Modernize Patent Law”. The core of the initiative is to exceptionally restrict the sharp sword of the patent law injunction claim for reasons of proportionality claim. In part, this means that an allegedly patent-infringing product has to be taken off the market for several years. In the middle class there is talk of an “existence-destroying potential” of such complaints.

Maintain proportionality The instrument recently came into focus due to the patent dispute between Nokia and Daimler over radio devices that are built into telematics units. Critics feared that due to a new, comprehensive “patent war” in the automotive sector, the assembly lines at Daimler could come to a standstill. The Broadcom vs. VW repeatedly made headlines until VW entered into an expensive settlement.

After the judgment of the Federal Court of Justice (BGH) in the case of heat exchangers from 2016 In principle, it is true that a court order may not be issued if it would represent “disproportionate hardship”. However, the Federal Government now wants to ensure that this corrective of the possibility of proportionality considerations is also sufficiently applied in judicial practice.

The executive therefore sees an expanded paragraph 139 patent law provides that the injunction claim is excluded due to special circumstances of the individual case, as far as the claim for the injured or third party “would lead to a disproportionate hardship not justified by the exclusive right”. To compensate, the person violated in his right of exploitation could demand appropriate monetary compensation. Any claim for damages should also be retained.

The proposed draft puts the courts in a position “to make the appropriate decision in each individual case”, the government justifies its initiative. At the same time, she emphasizes: “A permanent refusal of the right to cease and desist due to a disproportionate burden on the debtor, on the other hand, will only come into consideration in very few particularly extreme case constellations.” In the ministry of justice’s draft bill, there was less emphasis on “only a few” situations.

It also sticks to the statement that the principle of proportionality should not lead to a “devaluation of patent law”: strong injunction is indispensable for the enforcement of patents for the German industry. ”

Criticism and approval The patent Blogger Florian Müller fears that with the tightened text “the reform will come to nothing”. The German patent infringement judges are notorious for running “forum selling”, that is, attracting lawsuits through patent owner-friendly decisions, the app developer explained to heise online. “They will be more than happy to use the legal justification as a template to almost always continue to grant the right to cease and desist.” The most conceivable are transition periods, “which they will keep very short with reference to the limited remaining term of a patent”.

The government draft was preceded by a fierce lobby battle. “If Germany becomes a safe haven for patent infringers, spending on research, innovation and jobs could quickly be shifted to other countries with stronger patent rights,” warned the Secretary General of IP Europe, Francisco Mingorance. The group, which includes Nokia, Ericsson and French patent exploiter France Brevets, warned not to replace the standard for injunctions with an untested system of proportionality checks.

The IP to Innovate (IP2I) merger with companies like Daimler, BMW, SAP, Deutsche Telekom, Google and Nvidia, on the other hand, described the project as “urgently needed in order to maintain the competitiveness of Germany as a business and innovation location”. It is important to correct undesirable developments “which cause unjustifiable damage in many branches of German industry and medium-sized businesses”. Müller accuses the alliance of getting involved in the word “individual case” at an early stage and therefore being responsible for the deterioration.

Change of procedural law The procedural law is also to be changed with the planned law, which still has to pass the Bundestag and the Bundesrat. It is planned to better synchronize infringement proceedings before the civil courts and nullity proceedings before the Federal Patent Court. Currently, it often takes more than two years to bring down a shaky temporary monopoly claim. Infringement lawsuits can be carried out faster. For example, an injunction is often given before a decision has been made on the validity of the patent in question. It is necessary to readjust the patent law “selectively”, said the rights expert of the CDU / CSU parliamentary group Jan-Marco Luczak. Patents are being bought more and more in Germany with the sole aim of “putting companies under pressure and making high financial claims under the threat of serious consequences for entire production processes”. The CDU MP Ingmar Jung demanded: Barriers to patent injunctive relief should “remain the absolute exception”.

(olb)