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The Case Law of the German Courts of Instance (Instanzgerichte) for Patent Law and Utility Patent Law Since the Year 2011

White & Case Technology Newsflash

This article was published in a slightly adapted version, tailored to the needs of the German market, in the leading German legal magazine for intellectual property law, GRUR-RR, in October 2013. The report deals with the case law of the German Courts of Instance, meaning the twelve German District Courts (Landgerichte) specializing in patent infringement cases at first instance as well as the regional German Courts of Appeal (Oberlandesgerichte), which specialize in the decisions of appeals. A selection of decisions up to July 2013 will be discussed, partially with reference to other decisions of the German Federal Court of Justice (Bundesgerichtshof) as appellate court (Revisionsgericht) and the German Federal Patent Court (Bundespatentgericht), which has the exclusive jurisdiction of first instance for decisions in patent validity proceedings.

The article is divided into one part that deals with the substantive law (I), another part with important procedural issues (II) and one with the question of costs and cost recovery (III). A basic understanding of German and European patent law is an advantage when reading this article. Where necessary and reasonable, explanations for a better understanding have been included, unlike in the German original.

The report is focused on the review of decisions of the Düsseldorf District Court (Landgericht Düsseldorf) and the Düsseldorf Court of Appeal (Oberlandesgericht Düsseldorf). The reason for this is not only that these Courts decided by far the most patent suits within the reporting period, but also that they are active in the practice of court publications. The fact that some patent courts are not cited or have only a very small number of decisions is due to the small number of proceedings that were decided there, and those that were decided there have caused no significant case law developments, as was confirmed in personal conversations with several Chamber and Senate Chairmen at the appropriate courts.

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