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Defense against alleged Patent Infringement or Utility Model Infringement in Germany

Defense against an alleged patent or utility model infringement is possible by the following arguments:

  • The scope of the claims does not cover the distributed product or offered service.
  • Right to use the invention based on own prior use in Germany.
  • The subject matter of the patent or utility model is not novel and/or not based on an inventive step.

If none of these arguments applies, a solution circumventing the claims of the patent has to be found (walk around).

Scope of Protection of the Claims (Literal Infringement and Doctrine of Equivalence)

The scope of protection of a patent is determined by the literal sense of the claims and the doctrine of equivalence. A feature is held to be equivalent if it causes the same effect as a feature of the claim of the patent, causes this effect to the same extend and if no inventive skill is required for finding the equivalent feature. If the distributed product or the offered service is not covered by the claims and the doctrine of equivalence, there is no patent infringement. Therefore, it is necessary to analyze the scope of protection based on the case law and to analyze whether the product or service in question falls under the scope of protection.

Right based on own Prior Use in Germany

A right to use the invention based on own prior use arises from use of the subject-matter of the patent in good faith and for business purposes or effective and serious preparations for such use before the filing date or priority date of the patent in Germany. Such prior user has the right to continue to use the invention or to use the invention as planned during the preparations. The right of the prior use may only be transferred in combination with the company holding the right of prior use. No right based on prior use arises from the mere knowledge or documentation of the invention.

The Subject Matter of the Patent is not novel and/or not inventive

Prior art can be searched to render the claims not novel and/or not inventive. Such prior art can be used for an amicable arrangement or settlement out of court. A German Civil Court is bound to the validity of a European or German patent. Opposition proceedings or a nullity action can be used to revoke a European Patent, the German part of a European patent or a German patent. The validity of a utility model can be objected during enforcement at a Civil Court. Further, cancelation proceedings at the German Patent and Trademark Office are available.

Circumventing the Claims

If the above mentioned arguments are not applicable, a technical solution for circumventing the claims must be found such that the product or service does not fall under the scope of the claims.

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