Germany
Answer ... The oral hearing in infringement and validity proceedings are public. A party can request the court to exclude the public from certain parts of the oral hearing relating to confidential information. In addition, a party submitting confidential information can request the court to order measures for the protection of confidential information.
The court files are generally not accessible by the public. A third party that wants to access them must file a request with the court and show a legal interest in the inspection. No such legal interest is required to inspect the court files in validity proceedings, but the parties can request that specific submissions be excluded from such inspection.
Germany
Answer ... Patent infringement proceedings are initiated by:
- the filing of an infringement action with the competent court; and
- its service on the defendant by the court.
The court sets the defendant:
- a deadline for submitting its notice of defence; and
- a further deadline for filing the statement of defence, which is usually within two to four months.
The statement of defence is followed by a further round of written submissions according to the further deadlines set by the court. After conclusion of the written procedure, the oral hearing takes place. In the hearing, the court provides its preliminary opinion, which guides the parties as to what they should address in their oral pleadings. Commonly, claim construction, infringement and the defences raised by the defendant are discussed. The decision and the written grounds of the decision are usually issued subsequently, which may take up to some weeks after the oral hearing. The first-instance judgment is usually declared to be provisionally enforceable, subject to the provision of security by the enforcing party.
Patent validity proceedings are handled separately and are initiated by filing a nullity action with the Federal Patent Court. Upon service of the nullity action, the court sets the patent holder:
- a deadline for filing its formal opposition to the nullity action within one month of service; and
- a second deadline for filing the reasoning for the opposition within two months of service.
The second deadline can be extended by one month. Under the Second Act for the Modernisation and Simplification of Patent Law (which entered into force on 18 August 2021), the court should now provide the parties with a preliminary written opinion on the validity of the patent within six months of service of the action. With the preliminary opinion, the court sets the parties:
- a first deadline for commenting on the preliminary opinion; and
- a second deadline for commenting on the other party’s comments.
After conclusion of the written proceedings, the oral hearing takes place. The decision is usually announced at the end of the hearing. The written grounds of the decision are typically issued in the months following the hearing (commonly between two and four months after the hearing).
Germany
Answer ... Depending on the court, first-instance infringement proceedings usually take between 12 and 15 months from filing of the complaint until the issuance of the judgment.
First-instance validity proceedings before the Federal Patent Court commonly take between 22 and 26 months from filing of the complaint until the issuance of the decision.
Germany
Answer ... As Germany is a member state of the European Union, the German courts are bound by decisions of the Court of Justice of the European Union (CJEU) regarding the interpretation of European law. Otherwise, there is no concept of binding precedent in Germany. However, in practice, the courts take into account relevant decisions from other German courts and usually follow the rulings of higher courts – that is, the higher regional courts and the Federal Court of Justice. The courts are also not bound by the decision of foreign national courts. However, such decisions are nevertheless often filed by parties when they relate to parallel national proceedings in a dispute over the same patent, for example. Parties hope to influence the courts as they might examine such decisions despite not being bound to consider the arguments for their own rulings.