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Patent Infringement and Utility Model Infringement in Germany

To enforce a German patent or utility model in Germany, the proprietor can ask for damages and file for injunctive relief against an alleged infringer. In Germany, patent enforcement is typically commenced by requesting from the alleged infringer "the entitlement for right of use of the invention" (Berechtigungsanfrage) or by issuing a cease-and-desist warning.

With the request for entitlement for right of use, the alleged infringer is requested to explain why he is entitled to use the subject-matter protected by the IP right in Germany. Such request for entitlement for right of use opens a discussion between the patentee and the alleged infringer, whether the patent is infringed and valid. Both parties bear their own costs.

By a cease-and-desist warning, the alleged patent infringer can be requested to stop infringing subject to a penalty clause. The alleged infringer has to pay the costs of the cease-and-desist warning, if the warning is justified. However, in case the cease-and-desist warning is unjustified, the patentee has to pay the expenses of the alleged infringer incurred by rejecting the unjustified cease-and-desist warning. In a patent infringement action in Germany the party who loses the case has to bear the costs of both parties. Generally, a patent infringer has to bear the costs of the case only, if he received a cease-and-desist warning prior to the patent infringement action.

The scope of protection of a claim of a granted patent or a claim of a registered utility model comprises literal infringement and infringement under the doctrine of equivalence. In Germany, an equivalent feature has to cause the same effect as a claimed feature to the same extend, wherein the person skilled in the art must not need inventive skill to find the equivalent feature.

If no amicable arrangement or settlement out of court about ceasing the use of the invention or a license agreement can be achieved, an infringement action can be filed at a district court. In urgent cases, a patent infringement can be sued by an interlocutory injunction. For example, an interlocutory injunction is appropriate if a patent infringing product is presented on a trade fair. An interlocutory injunction can also be based on a utility model. However, courts generally only issue a cease-and-desist order or temporary injunction if the utility model has been searched.

If no patent has been granted yet for an international, European or German patent application, it is possible to branch off a German utility model for suing the patent infringer, if the subject-matter of the respective claims is novel and based on an inventive step.

Contributory infringement can be used for enforcing a patent, if the infringer only produces a part of the claimed invention, as long as such part is an essential element of the invention.

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