Germany: Germany, the Patent Litigation Locomotive in Europe
New Fuel to Patent Litigation at the District Court Düsseldorf

First published (in a shorter version) in MIP, World IP Contacts Handbook 2001

At the District Court Düsseldorf, the most important first instance court for patent infringement in Germany and Europe, an additional chamber specialized in patent infringement cases has been established recently. As a consequence, the duration of patent infringement lawsuits, which in the past took ten to twelve months in this court until the decision, will be reduced considerably, down to about six months according to expectations of practitioners.

The Düsseldorf patent judges are widely acknowledged to be highly specialized and experienced in patent infringement cases. Handling only IP cases and hundreds of patent infringement cases each year, their constant exposure to patent law and technical subjects leads to a profound understanding of both patent law and the technical aspects of the cases and, as a consequence, to further acceleration and competence. Parties can count on efficient and speedy litigation. Handling, according to an estimation, currently more than 30% of all European and more than 50% of all German patent infringement and other IP infringement cases, Düsseldorf is for several reasons regarded by many patentees as the most attractive venue for patent infringement proceedings in Europe. The establishment of a further IP-specialized chamber at the Düsseldorf District Court is a consequence of this obvious attraction of Düsseldorf as patent venue.

Not only from the view of Germany based patentees but also for foreign plaintiffs, there can be considerable advantages to choose Germany and in particular the Düsseldorf patent Courts as a venue for patent (and IP) infringement actions, with the option of either a national lawsuit with effect for Germany or, in appropriate cases, a so called cross-border infringement lawsuit covering several European countries.

Specialized patent and IP infringement courts and law firms provide for professional, fairly reliable and predictable proceedings. As mentioned above, an enforceable first instance judgement can be achieved reasonably fast. Since there is neither before nor during trial any discovery of facts nor any out-of-court deposition of testimonies, litigation in German courts can be conducted in a very streamlined and efficient way.

As a practical consequence, the strategy of plaintiffs mostly consists in obtaining an early enforceable injunction, which is practically always granted in first instance decisions confirming infringement. In urgent cases with clear infringement and validity, even a preliminary injunction can be granted within a few weeks.

In particular the attitude of the Düsseldorf Courts can be described as basically pro-patentee, as German patent law and courts traditionally are not biased against patents in the sense of "bad monopolies". Different to the Anglo-American tradition, file history estoppel and other estoppel defenses in Germany are rather limited. Judgements are mostly based on intrinsic interpretation of the patent claims and of their scope of protection by the court itself (including a broad application of the doctrine of equivalents), rather than on time consuming and cost intensive expert and witness battles. As a result, court hearings in the Düsseldorf Courts take an average of 1-3 hours.

The filing of nullity actions or oppositions does not automatically stop infringement proceedings, since there are separate courts and court proceedings for infringement and validity of patents. The defendant needs to file a separate nullity action or opposition proceedings for attacking the validity of a patent and for requesting a suspension of the infringement litigation. Infringement courts cannot hold patents invalid but will suspend the infringement proceedings only if they are convinced that the separate nullity action or opposition will be successful.

Another important characteristic of German procedural rules is the free evaluation of evidence by the court. Expert opinions submitted by party experts are not admitted as evidence, only opinions of neutral experts appointed by the court. There are no jury trials in patent cases.

The effect of this focussed and hands-on format of patent infringement proceedings: Compared to the USA and the UK, litigation costs in Germany are by far lower - for rather speedy decisions covering Germany as the biggest economy in Europe.

The apparent attraction of this efficient and fast patent litigation system to internationally active companies is evidenced by the fact that the author is constantly representing a great number of US based companies as plaintiffs in German patent litigation covering all areas of technology. In quite a number of these cases, the defendant is also a US company or its European subsidiary. Thus, in view of its above mentioned characteristics, patent litigation in Germany is often also a kind of test battle field for further cases in other countries.

©2001 by Reinhardt Schuster