Papers on Reforming the Law of Injunctions in Germany

1.  Martin Stierle has published a paper titled Der quasi-automatische Unterlassungsanspruch im deutschen Patentrecht:  Ein Beitrag im Lichte der Reformdiskussion des § 139 I PatG ("The quasi-automatic injunction claim in German Patent Law:  A Comment in Light of the Reform Discussion of  Patent Act § 139 I"), in the September 2019 issue of GRUR (pp. 873-85).  Here is the abstract (my translation from the German):

In various foreign patent systems and in general German civil law, a new development can be perceived at present, of rendering the right to an injunction less mandatory.  To this discussion can be added also the current deliberation over reforming  Patent Act § 139 I, which in practice leads to a quasi-automatic claim for injunctive relief.  For now, four problem areas are discussed:  cases relating to non-practicing of patents, complex products, infringing implementations in which there is a heightened third party interest, and standard-essential patents (SEPs).  The limitation on the right to an injunction with regard to SEPs is clear in its basic structures, in contrast to the considerable lack of clarity regarding the other problem areas.  In these other areas the case law categorically refuses to limit injunction claims, or at least imposes an artificially high factual threshold, even while a substantial portion of the literature critically opposes an unlimited right to an injunction.  From a doctrinal perspective, the law as it exists--especially BGB § 242 in connection with the legal concept of BGB § 251 II--offers adequate possibilities for implementation, which also would permit compensation for the limitation on injunctive relief.  Nevertheless, at least for reasons of clarification, a limited exception--one that can be applied on a flexible, case-by-case basis, and allows for financial compensation as a legal consequence--should be incorporated into Patent Act § 139 I.  The procedural approaches to reform, discussed in parallel, cannot solve the substantive problem areas. 

For readers not familiar with the above provisions of German law, Professor Stierle is arguing that German courts cannot rely exclusively on the Aufbrauchfrist (grace period, stay of injunction) to alleviate the disproportionate hardship that may arise in the problem areas noted above.  Rather, the legislature should amend the German Patent Act to make it clear that in exceptional cases (the types of cases referred to above, not including SEPs which already are adequately addressed by competition law) courts may depart from the norm and award an ongoing royalty in lieu of injunctive relief.  Specifically, he would add language to the effect that the improper assertion of rights could result in the complete or partial loss of the right to an injunction; would note as possible examples the non-practicing of the patent by the owner or a third party, or disproportionate harm in special cases; would require the justifiable interests of third parties to be taken into account; and would specify that, when injunctive relief is denied, reasonable compensation can be awarded. 

2. Taking a somewhat different tack, in the same issue of GRUR (pp. 886-91), are Sascha S. Zhu and Marcel Kouskoutis, in their article Der patentrechtliche Unterlassungsanspruch und die Verhältnismäßigkeit:  Die Vollstreckungsrechtliche Lösung über die Anpassung des § 712 ZPO im Patentgesetz ("The right to an injunction in patent law and proportionality:  The execution-of-judgment solution through the adaptation of Civil Procedure Code § 712 into patent law").  Here is their abstract (again, my translation):

How can one take into account, in a balanced manner, the interests of both sides in patent cases involving claims for injunctive relief?  Aside from the approach of fundamentally altering the character of Patent Act § 139, there is the (hereinafter explained more closely) "Fine adjustment solution." This would allow courts to take into account the proportionality of legal consequences, by making temporary execution of judgments more flexible.  While the infringement plaintiff can at the latest enforce its claim for injunction before the BGH without hindrance, the courts of first and second instance can provide the defendant with reasonable protection against the drastic consequences of enforcement.

Professor Stierle, above, is less convinced about the feasibility of this solution.  

For further discussion of reform efforts in Germany, and of the Aufbrauchfrist, see my posts here and here.