On 28 October 2020, the German Federal Government passed a bill to simplify and modernize the German patent law. The bill is expected to pass the German Parliament (Bundestag) early next year. Once the draft law passes, injunctions in patent infringement cases will be restricted by equitable considerations in individual cases.
Currently, a permanent injunction is the automatic remedy if a patent is found to be infringed. The newly-passed bill will limit injunctions through a commensurability test, whereby a claim for injunctive relief might be considered disproportionate in exceptional individual cases, e.g., if it would cause an extreme economic hardship for the alleged infringer.
Additionally, the bill sets out a change of procedural rules. One of the peculiarities of the German patent system is that infringement and nullity proceedings are tried in different courts. Decisions on infringement and validity might therefore not necessarily be rendered at the same time, which might lead to a so-called “injunction gap.” In order to avoid an injunction before a decision on the validity of a patent has been rendered, the bill stipulates that “qualified indications” (“Qualifizierte Hinweise”) issued by the invalidity courts about their view of the factual and legal considerations could also be provided to the infringement courts ex officio. Currently, such qualified indications may only be provided to the parties to the nullity proceedings.
Lastly, in order to strengthen the protection of trade secrets, the bill provides for the application of portions of the German Trade Secrets Act in patent infringement proceedings.