In Germany, questions of patent infringement and validity are
(somewhat controversially) tried separately in different courts.
While the Federal Patent Court has exclusive jurisdiction over
actions for nullity (section 81(4) of the Patent Act) with a
possible appeal to the Federal Court of Justice, infringement
proceedings are dealt with by the civil divisions of the Regional
Courts (section 143(1) of the Patent Act). Decisions of
the Regional Courts may be appealed to the Higher Regional Courts
and, from there, to the Federal Court of Justice. Thus, in both
nullity and infringement proceedings the Federal Court of Justice
is the court of last Resort.
The dualistic system leading to a bifurcation of validity and
infringement proceedings is particularly significant when both
lines are working the same case from different angles. It is common
practice for parties accused of patent infringement to challenge
the patent's validity before the Federal Patent Court. If the
Federal Patent Court, subject to an appeal, declares the patent
null and void in its entirety, the infringement court will dismiss
any claim that the patent has been infringed. However, it has been
unclear to what extent the reasoning of the Federal Court of
Justice in nullity proceedings shall have binding effect for courts
in parallel infringement proceedings if the patent is upheld, or
only partly declared void. This particularly concerns the Federal
Court of Justice's interpretation of patent claims. On 2 June
2015, the Federal Court of Justice (X ZR 103/13) stated that an infringement court
has to interpret patent claims independently. While it is
established case law that the methodology of claim construction
must be the same in nullity and infringement proceedings (X ZR 7/00), the infringement court shall, in
neither law nor fact, be bound by the interpretation of the claims
by the Federal Court of Justice in a parallel nullity proceeding.
The construction of a patent claim was once again expressly
characterized as a question of law. Thus, each court considering
the claims has to conduct an independent legal analysis.
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on legal issues and developments of interest. The foregoing is not
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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