In a highly criticised decision on 15th September 2020, the German Ministry of Defense awarded a $250 million contract to weapons manufacturer Haenel. Haenel was chosen to provide MK 556 assault rifles to the German military as replacement for the current standard assault rifle HK G36, manufactured by Heckler & Koch. The HK G36 was introduced in 1997 as the new standard rifle and replaced the HK G3, which was introduced in the 1950s and also provided by Heckler & Koch. Despite the fact that Haenel is a German company, security concerns were raised, since Haenel is a small subsidiary of the EDGE Group, which is a United Arab Emirates defense conglomerate.
On 9th October 2020, the German Ministry of Defense withdrew its decision to award Haenel with the contract and announced that patent infringement by Haenel at the expense of Heckler & Koch could not be ruled out.
The patent in question is Heckler & Koch's EP 2 018 508 B1 claiming the priority of a German utility model (DE 20 2006 007 925 U). The patent relates to a weapon breech system having a breechblock carrier and a recoil spring system, comprising at least one fluid passage opening and also a recoil spring plunger, characterised in that the breechblock carrier and the recoil spring plunger displace liquid from at least one fluid passage opening when the breechblock carrier is returning. In other words, if a weapon with a breechblock carrier according to the invention was submerged, the weapon could be fired immediately after making landfall. The water which might be still present, will be removed through at least one fluid passage opening. Without such feature, a weapon which was submerged would need to be disassembled, cleaned and reassembled before being used again. If not, the weapon might explode in the hand of its user or not fire at all.
For the time being, patent attorneys assess the potential infringement on behalf of the Ministry of Defense. Nevertheless, it will be interesting to see if the appeal lodged by Heckler & Koch against the awarding decision will lower the chances for Haenel to win the bidding process again, although their initial offer was $51 million lower. According to Case Law from the Higher Regional Court Düsseldorf (OLG Düsseldorf VII-Verg 91/04 dated 21st February 2005), the awarding office must assess whether a possible infringement of IP rights restricts the ability of a company to supply the product or not. The awarding authority does not need to wait for the outcome of any legal dispute, but it must assess the risk to what extent the supply and supply chain could be affected in case the law suit ends in a different way than expected. For the above reasons, it is likely that the German Ministry of Defense is not willing to take the risk and award Haenel with the highly valued defense contract for a second time. Nevertheless, the bidding process starts again, with Heckler & Koch being in a potentially stronger position than before.
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