The presentation of products at German trade fairs constitutes an “offer” that the owner of pertinent patent rights can attack before the German courts (Regional Court of Hamburg, judgment of April 26, 2018, 327 O 479/16 - Device for Mounting of Wind Turbine Blades).

Four years ago, the First Senate of the German the Federal Supreme Court, which is responsible for trademark, design right, copyright and unfair competition matters, found that the presentation of a product at international trade fairs held in Germany as such does generally not constitute an offer of the products in Germany (German Federal Supreme Court, judgment of October 23, 2014, I ZR 133/13 – Cookie Sticks; confirmed in the following judgment of February 23, 2017, I ZR 92/16 – Mart-Stam-Chair). With other words, according to the court, no claims for IP right infringing offers can be based on such activities alone.

So far, the Tenth Senate of the German Supreme Court, responsible for patent matters, did not get the chance to clarify whether or not it concurs with the First Senate in this regard. However, the Higher Regional Court of Düsseldorf, one of the most important German and European patent infringement appeal courts, has explicitly opposed this line of case law by stating that the presentation of a product at an international German trade fair generally does constitute a (patent infringing) offer (judgments of March 27, 2014, I-15 U 19/14, and of June 29, 2017, I-15 U 4/17). Now, in its recent judgment of April 26, 2018 (327 O 479/16 - Device for Mounting of Wind Turbine Blades), the Regional Court of Hamburg concurred with the Higher Regional Court of Düsseldorf’s dissenting opinion.

Practical Impact:

The effective enforcement of patents at trade fairs is of utmost importance. Consequently, the new decision of the Regional Court of Hamburg is good news for patent owners. Now, the courts of two out of four leading patent infringement venues, namely Düsseldorf and Hamburg, concur that the presentation of a patent infringing product at a German trade fair can effectively be attacked before the German courts. However, patent owners still have two carefully choose the right to venue for the cases, if possible. For example, the Regional Court of Mannheim shares the German Federal Supreme Court’s different opinion, namely that such activities do not constitute a patent infringing offer (judgment of October 29, 2010, 7 O 214/10), and thus would be a poor choice for bringing such claims.