Reed Smith Client Alerts

With the next general election scheduled for September 2021, parliamentary time is very limited. This week members of the German federal parliament (Bundestag) have been working overtime, into the small hours, debating and passing laws. Germany, of course, is among the world’s leading patent jurisdictions. However, several years after the implementation of the EU Enforcement Directive the government felt that the Patents Act (PatG) needed updating. Following lengthy consultations and many changes, the reform bill passed the Bundestag very early this morning (June 11, 2021). The second chamber of parliament (Bundesrat) is unlikely to raise further objections, so the new provisions will probably come into force rather sooner than later.

Injunction gap

The ministry of justice failed to achieve one of its main goals. It originally intended to tackle the “injunction gap,” a phenomenon associated with Germany’s bifurcated patent litigation system, in which infringement and validity questions are discussed in separate forums.

From the perspective of the patentee, bifurcation has the advantage of speeding up infringement proceedings. If there is an infringement, the court usually issues a permanent injunction within 18-24 months. However, the period from filing to decision in opposition and nullity proceedings is considerably longer. This implies that, while an alleged infringer may eventually succeed in invalidating the patent, during the injunction gap it faces the threat of enforcement of an already granted injunction.

The ministry of justice proposed two different mechanisms to closer synchronization of infringement and invalidation proceedings. The overall aim was to enable defendants to bring nullity proceedings without having to await the outcome of prior opposition proceedings. However, the proposals met with widespread criticism and the ministry therefore dropped the matter.