Process patents – paper tigers or effective protective rights?
09 June 2021
When process patents are infringed, patent owners are often faced with considerable problems of providing proof of infringement. Effective enforcement is further impeded by the strict requirements set by German case law for inspection proceedings. In order not to let the protection by process patents run empty, a rethinking is necessary with regard to the requirements for “sufficient likelihood”.
Key points/1 minute read/Summary
For the enforcement of (manufacturing) process patents, patent owners are often dependent on information from the actual manufacturing process or from confidential (regulatory) documents of the purported infringer. The inspection procedure under Sec. 140c PatG offers an effective method of obtaining evidence in Germany - a legal system that lacks a "discovery" procedure. However, when issuing inspection orders, the courts apply strict standards and require factual indications that a patent infringement is "sufficiently probable". When this is the case is judged differently in the case law. If there are alternative (possibly even patent-free) possibilities for production, the inspection request often remains unsuccessful. Stephan Neuhaus argues for an interpretation in conformity with European law, according to which a request for inspection is to be granted if "all available evidence" has been submitted, but the facts of infringement nevertheless remain unclear. Otherwise, process patents, the protection of which is expressly provided by the legislator, are practically devalued. Justified interests of the respondent in the inspection proceedings in the protection of his trade and business secrets can be taken into account by the flexible design of the so-called "Düsseldorf procedure".