5.3 Judicial institutions
5.3.1 Judicial administration structure
Germany is constituted as a federal republic of 16 states (“Länder”). According to Article 92 of the German Constitution,9 there are both federal courts and state courts. To preserve uniformity of decisions, according to Article 95(1) of the Constitution, the FCJ was established as the appellate court for state courts in the last instance. If all other legal remedies are exhausted, then, under specific circumstances, a constitutional complaint may be filed to the Federal Constitutional Court (“Bundesverfassungsgericht”) established under Articles 92–94 of the Constitution.
Despite the general competence of regional courts, an infringement suit cannot be filed with just any regional court in Germany; rather, there are 12 (out of 115) regional courts that have been designated to hear patent infringement cases. Most cases are heard by the Regional Court (“Landgericht”) of Düsseldorf, the Regional Court of Mannheim or the Regional Court of Munich. While the jurisdiction of each regional court is limited to a certain geographical area – that is, one or several states – all courts will assume jurisdiction if infringing products are offered on the internet. The Regional Court of Düsseldorf and the Regional Court of Munich both have three specialized chambers for patent matters, whereas there are two specialized chambers at the Regional Court of Mannheim.10 The chambers at the regional court level consist of three specialized judges. Although these judges are trained lawyers – most of them without technical backgrounds – they generally have significant experience in patent cases and have a profound understanding of various technical fields.
For each regional court, there is a corresponding higher regional court (“Oberlandesgericht”) as the appellate court. Due to the focus on the regional courts of Düsseldorf, Munich and Mannheim in the first instance, most appeals are filed to the higher regional courts of Düsseldorf, Munich and Karlsruhe respectively. At the higher regional court level, designated senates of three judges hear appeals in patent infringement cases. Notably, at the Higher Regional Court of Düsseldorf, there are two senates established to hear patent infringement appeals.
At the FCJ, the X Senate hears appeals from the higher regional court level, with a bench of five judges on questions of law. The senate, however, will only hear appeals from a higher regional court if leave was given either by the higher regional court or, upon appeal against a negative decision by the regional court, by the FCJ itself.
The FPC in Munich has exclusive jurisdiction over patent nullity actions. Depending on the International Patent Classification (IPC) classification of the patent-in-suit, cases are assigned to one of the seven nullity senates (“Nichtigkeitssenate”) at the FPC. Cases at the FPC are decided by a panel of five judges. In contrast to infringement proceedings, only the presiding judge and one associate judge are lawyers, while three associate judges have a technical education and have often been patent examiners prior to their appointment as judges. Decisions by the FPC can be appealed to the FCJ, where the X Senate (the same senate as in infringement cases) is competent. The judges at the FCJ are all lawyers without necessarily having an additional technical background.
In patent infringement cases, representation by a fully qualified lawyer (“Rechtsanwalt”) is required. Regularly, especially in cases concerning complex technologies, lawyers will be supported by patent attorneys (“Patentanwalt”) who have a technical background in the respective field of technology. By contrast, in validity proceedings at the FPC and invalidity appeal proceedings at the FCJ, aside from lawyers, patent attorneys are entitled to represent clients. Typically, a close alignment is required between lawyers acting in the infringement proceedings and the patent attorneys handling the validity proceedings.
5.3.2 Double-track system: patent infringement and patent validity proceedings
One of the distinguishing features of the German patent system is its double-track system: patent infringement and patent validity proceedings are separated.
Infringement proceedings are heard by regional courts in the first instance and can be appealed to higher regional courts and, eventually, if leave was given, to the FCJ. By contrast, nullity actions addressing a patent’s validity must be filed with the FPC, with the FCJ as the appellate court. Only at the FCJ do the separate jurisdictions converge; however, invalidity and infringement proceedings are also heard separately here.
Infringement courts have no jurisdiction to review whether a ground for the revocation of the patent-in-suit is given. Rather, the infringement court is bound by the grant of the patent. Consequently, the defense of invalidity is not admitted in infringement proceedings as it is in other jurisdictions. However, the infringement court has discretion to stay infringement proceedings in view of a pending nullity action before the FPC or an opposition proceeding pending before the German PTO or the EPO. Commonly, defendants in an infringement litigation will file nullity proceedings at the same time as their statement of defense. This allows them to request a stay of the infringement proceedings.
In the first instance, a stay is generally only issued if there is a high likelihood that the patent-in-suit will be invalidated in the opposition or nullity proceedings. This legal standard is applied with varying degrees of strictness by the regional courts, some of which follow a slightly more generous approach regarding the stay of proceedings than others. If infringement proceedings are stayed, the stay generally lasts until the first-instance decision in the nullity proceedings or the opposition proceedings is handed down.
If infringement proceedings are not stayed, this leads to comparatively speedy infringement proceedings, with a first-instance decision within 8 to 20 months, depending on the complexity of the case and the current workload of the respective regional court.11 Conversely, the stay of proceedings can prevent the plaintiff from enforcing their patent for a considerable period, as in nullity proceedings, where a first-instance decision can typically only be expected within 15 to 30 months. The situation (often referred to as an “injunction gap”) puts plaintiffs at an advantage: the plaintiff can enforce a first-instance injunction (if a security bond is provided) before there is a decision on the patent’s validity.
In this respect, the up-front preliminary opinions of the FPC given under Section 83(1) of the Patent Act12 in writing early in nullity proceedings play an important role in the infringement court’s exercise of discretion as to whether to stay the infringement proceedings. If the FPC indicates in such a preliminary opinion that it tends to consider a patent not to be valid, the infringement court will usually stay proceedings. In the future, the lack of synchronization between infringement and validity proceedings may be further mitigated, as Section 83(1) of the Patent Act has been amended recently13 to stipulate that the FPC should issue a qualified opinion within six months after service of the action.