The main aim of the draft is a reform of patent invalidity
litigation. Particularly the long duration of the appeal procedure
is endangering the effectiveness oft the German patent system. The
time for proceedings to be instigated before the Federal Supreme
Court takes four years and more, and there is a great backlog of
unclosed cases. The German procedure of patent nullity is
characterized by three features: The Federal Patent Court has the
exclusive jurisdiction to declare null and void or to limit a
patent valid in Germany. The only appeal instance lies with the
Federal Supreme Court which decides on facts and law which is
exceptional in itself. The chambers of the Federal Patent Court are
made up of technical and legal members. The draft intends to adapt
the legal procedure of the second instance to the common character
of the Federal Supreme Court as the last instance, deciding only on
questions of law.
The draft however proposes special rules of the review
proceedings. They are taking into account the particular situation
of controlling questions of technical matter and especially the
relevant state of the art – and, therefore, of the
fictitious person skilled in the art. Other instruments introduced
to accelerate the proceedings in both instances include preparation
of the oral proceedings by a notice of the Federal Patent Court
regarding the relevant issues to deal with, and fixing a period of
time in which the parties have to file requests or amendments or
submit pleadings. The Court has the discretion to refuse any
attacking or defending submissions of the parties, as well as
amendments of the claims, or of submissions of amended text of the
patent by the defendant if such submissions are filed after the
final date of the period determined by the Federal Patent Court. In
a similar way, amendments are restricted before the Federal Supreme
Court. The overall intent is to limit the usually troublesome use
of late submissions and, particularly, late requests of amending
the claims of the patent. The ex officio principle of the whole
procedure was not changed. GRUR, in its opinion, recommended
cancelling this maxim.
Inter alia the draft further proposes to partly cancel the duty
of a party domiciled outside Germany (in the EU or the EEA) to
provide for a person authorized to accept service in Germany (in
procedure before the Patent and Trademark Office or the Federal
Patent Court – details are here omitted); and to cancel
the need of a patentee to file an action of infringement
established on several patents related to the case, the so-called
maxim of concentration of actions.
An important further amendment relates to the field of
employee`s inventions: The employee`s invention is claimed
automatically by the employer if he is not declaring the release of
the invention in favor of the employee within the prescribed time
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.
The former governing mayor of Berlin, Klaus Wowereit, a member of the German Social Democratic Party, SPD, has suffered a legal defeat in his year-plus battle with the German publishing house Axel Springer.
Securing effective legal protection for patents is a high priority for all businesses who seek the quick but safe entry of their new products into the commercial marketplace.
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