On Oct. 15, 2008, the Federal Government launched a draft for simplification and modernization of the patent law. The core of the initiative is, in particular, to improve nullity proceedings. Currently, nullity proceedings are rather slow, especially nullity appeal proceedings. Meanwhile, the duration of a nullity appeal filed with the Federal Supreme Court is four years, and one can expect that without a radical reform of the procedural rules for nullity cases, the Federal Supreme Court will have accumulated more than 200 pending cases until 2010, i.e., a workload for approximately five years. As is generally known, Germany relies on the so called “bifurcated system,” according to which the infringement courts are not entitled to rule on the validity of a patent. This is rather the duty of the Federal Patent Court and Federal Supreme Court in the context of nullity proceedings, in addition to opposition proceedings. In an infringement case, the infringement court usually suspends the proceedings should the validity of the patent at state be clearly doubtful until the revocation proceedings pending against the patent in suit have been terminated. Therefore, the duration of nullity proceedings significantly impacts the efficiency of the infringement courts (or opposition).
Against this background, the procedure in nullity matters shall be adjusted to the principles that are relevant in infringement matters. It is intended that the appeal shall in the future be limited to legal issues. At the same time, the facts of a case shall be more efficiently clarified and handled at the first instance. In the future, the Federal Patent Court is deemed to inform the parties about its preliminary assessment of the case as early as possible, so that the parties can then adjust their position accordingly. By introducing corresponding time limits, court and adversary party shall be protected against surprising new submissions that, currently, are often made only in the hearing.