The Federal Ministry of Justice wants to better protect companies from unjustified injunctive relief orders in patent disputes. To this end, the legislature should ensure that the already existing legal possibility of considering proportionality considerations in the case of injunctive relief is also practiced.
In the case of patent infringements, those affected can currently claim an injunction against the perpetrator. This can lead to an allegedly infringing product having to be withdrawn from the market for several years.
The Bundesverband IT-Mittelstand (BITMi) speaks therefore in a statement
of the “existence-destroying potential” of such lawsuits. Patent holders could thus “induce market participants to conclude comparisons that are unfavorable for them”.
According to the judgment of the Federal Court of Justice (BGH) in the case of Wärmetauscher in 2016, it is in principle already the case that a court order may not be issued if it constitutes “disproportionate hardship” to enforce the injured person’s right to cease and desist, also taking into account his interests and therefore “unfaithful” would. However, the criteria listed are soft as wax. The slight corrective has so far hardly been used in the lower courts.
The Justice Department wants its published on Tuesday Draft bill for a “Second Law to Simplify and Modernize Patent Law” therefore now clarify in Section 139 of the Patent Act that an injunction is excluded if the exclusive right would lead to unjustified disadvantages in a particular individual case. Then the person who was violated in his right of exploitation could demand an appropriate monetary compensation. There is also a possible claim for damages.
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The app developer and patent blogger Florian Müller speaks of a “spectacular turnaround”: For corporations like Siemens, Nokia, Ericsson, the pharmaceutical industry as well as “patent trolls like Sivel and Fraunhofer” a “massive defeat” is on the horizon. The new formulation goes far beyond the approach from the January draft discussion. In doing so, the ministry had already brought a proportionality test into play, but linked this solely to the BGH criteria “the commandments of good faith” and an “unjustified hardship”.
The patent injunction claim recently received special attention, for example through a patent lawsuit brought by Nokia against Daimler. In the process, which the Federal Cartel Office was still trying to delay, the Mannheim Regional Court saw it as proven that the car manufacturer was violating Nokia’s industrial property rights with certain telematics units in its vehicles for a synchronization mechanism in mobile networks.