Tuesday, January 18, 2022

Ohly and Stierle on Germany's 2021 Amendments to its Patent Law

Ansgar Ohly and Martin Stierle published an article in the October 2021 issue of GRUR (pp. 1229-41) titled Unverhältnismäßigkeit, Injunction Gap and Geheimnisschutz im Prozess: Das Zweite Patentrechtsmodernisierungsgesetz im Überblick (“Disproportionality, Injunction Gap, and Protection of Confidential Information in Litigation:  An Overview of the Second Patent Law Modernization Act”). Here is the abstract (my translation from the German):

The German Parliament approved the Second Law for the Simplification and Modernization of Patent Law on the evening of June 11, 2021.  By now it has been officially published.  Some of the amendments took effect as of August 18, 2021; others will enter into force on May 1, 2022.  The Law adds to Patent Law § 139(1) a disproportionality objection; envisions that the Patent Court will provide a qualified opinion under Patent Law § 83(1) within six months and transmitted to the infringement court; clarifies the protection of confidential information in litigation under §§ 16 et seq. of the Trade Secret Law as being equally applicable in patent actions and in compulsory license proceedings (Patent Act § 145a); and makes a range of smaller readjustments in patent, utility model, and trademark law.  The following essay presents an overview of the essential changes and subjects them to an initial critical analysis.

The article has an extended discussion of open questions surrounding how courts will set appropriate compensation for the interim period during which a court may stay an injunction pending sell-off or design-around (e.g., will there be an enhancement, how if at all will courts take into effect potential lock-in effects, etc.).  (If those observers who are of the opinion that this “grace period” will not be invoked very frequently are right, it may be a while before we know the answers to these.  For previous discussion on this blog, see, e.g., here.)

Update:  Florian Mueller provides a summary of his thoughts on the legislation, as expressed in a recent German-language  article,  here.     

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