Germany Hailed as an Arena for Solving International Patent Disputes

Indian companies can enforce patents in Germany not only in cases where the opponent operates in Germany but also in cases where activities of the opponent have bearing on Germany. Even in a litigation where Germany is only marginally affected, Indian patentees may have a standing in Germany and be able to sue opponents from foreign countries such as USA, Japan, China and even India.

- Dr. Stefan Schohe

Germany has recently received considerable attention as an arena for patent disputes. The main points of attraction are the relatively short and inexpensive procedures and, most notably, the fact that an injunction will be granted in case of infringement as a matter of right. Less known is the fact that German courts have developed a rich case law on infringement with foreign participation or otherwise extraterritorial aspects that have literally far-reaching consequences for foreign companies. Inter alia, they may be subjected to injunctions and liable for damages, even if they do not operate in Germany at all.

This case law relies on German provisions on contributory infringement and a broad concept of participation in an unlawful act. Looking at contributory infringement first, the German Patents Act provides that a patent shall prohibit any third party not having the consent of the patentee from offering or supplying in Germany means relating to an essential element of the invention for use of the invention in Germany to a person not authorized to use the invention, if said third party knows or it is obvious from the circumstances that such means are suitable and intended for use of the invention. This sounds fairly limited to Germany and thus mostly harmless for foreign companies, but it is not.