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.