Thomas Heinz Meitinger has published an interesting essay titled Der Unterlassungsanpruch des Patentrechts: ein Versehen der Geschichte (“The Claim for Injunctive Relief in Patent Law: An Accident of History”) in the June 2024 issue of Mitteilungen der deutschen Patentanwälte (pp. 275-76). Here is the abstract, in my translation from the German:
The Patent Act is based upon the assumption that technical inventions are property with property rights. An essential property right is the possibility of excluding any third party from the use of the property. Such an exclusion happens in patent law through the claim for injunctive relief. A claim for injunctive relief is therefore a logical consequence of patent law. It is therefore surprising, that the advocates for the introduction of the first patent law of 1877 did not want to afford patent owners an unconditional right to injunctive relief. The claim for injunctive relief was to be accorded to a patent owner only for the first five years of the patent, and only if an adequate use of the patented invention was ensured. After the first five years an obligation to license on reasonable terms was imposed on the patent owner, so that the claim for injunctive relief was factually moot.
According to the author, the years leading up to the 1877 German Patent Act witnessed a contest between patent law advocates and opponents, with the advocates—led by the Patentschutzverein, or Patent Protection League, of Werner von Siemens—eventually carrying the day when Minister and Reichskanzleramt President Rudolf von Delbrück resigned. Nevertheless, even Siemens’ League, in recognition of both the benefits and costs of patent protection to their own interests, wanted some limits, in particular a limit on injunctive relief as described above. Thus, as the author puts it, neither the advocates nor the opponents wanted a comprehensive, absolute right to injunctive relief. The decision to make injunctive relief more in the nature of an absolute right, subject only to the possibility of a compulsory license in the public interest, instead came from Der Eisenkanzler, Otto von Bismarck, perhaps out of concern that the public would view a general licensing obligation as benefiting large enterprises. Thus, instead of including the limitations described in the abstract above, the 1877 law stated that a patent could be forfeited after three years if the patent owner had not adequately worked the patent in Germany, or if the granting of licensing in the public interest seemed necessary but the patentee refused to do so on reasonable terms. (Cf. the current text of the Paris Convention, article 5.) As a result of the Chancellor’s intervention, the author argues, an absolute right to injunctive relief was introduced into German patent law, despite the fact that neither of the protagonists in the debate leading up to its adoption wanted that.
