Patent Infringement in Germany

Enforcing patents

• Claims: injunction, information on origin and distribution channels, rendering of accounts, damages (actual loss, reasonable royalty or infringer’s profits), recall and destruction.
• Preliminary injunctions: possible within days, for example at trade fairs in Hannover, Düsseldorf, Frankfurt or Munich. Urgency is required, generally one to two months from knowledge depending on the court. The validity of the patent must be sufficiently certain.
• Inspection orders: under the “Düsseldorf procedure”, a court-appointed expert can inspect machinery, processes or software without prior warning, while protecting the defendant’s trade secrets.
• Border seizure: applications for customs action under Regulation (EU) No 608/2013, filed with the German customs authority’s central office for IP.

Defending against infringement claims

We review warning letters, file protective letters with the central German register and before the UPC, attack the patent in opposition or nullity proceedings, and develop design-arounds or licensing solutions. Unjustified warnings sent to a competitor’s customers may give rise to damages claims.

Germany or the UPC?

For European patents without an opt-out and for Unitary Patents, patentees can also sue before the Unified Patent Court. We advise on forum selection with a view to territorial reach, timing and the risk of central revocation.

Scope of protection, equivalents and indirect infringement

The scope of a patent is determined by its claims, interpreted in the light of the description and drawings (Art. 69 EPC). German courts also find infringement by equivalent means if the modified feature solves the problem with the same effect, the skilled person could find it without inventive effort, and the solution is oriented to the meaning of the claim. Indirect infringement (Section 10 Patent Act) covers the supply of means relating to an essential element of the invention, where the supplier knows or it is obvious that they are intended for infringing use in Germany. Spare parts, kits and components are typical cases.

Damages

Damages can be calculated in three ways, at the patentee’s choice: actual loss including lost profit, a reasonable royalty (licence analogy), or the infringer’s profits attributable to the infringement. German proceedings usually first establish liability and the duty to render accounts; the amount is then determined on the basis of the information provided, if necessary in separate proceedings. Claims generally become time-barred three years after the end of the year in which the patentee learned of the infringement and the infringer.

Standard-essential patents and FRAND

Patents declared essential to a standard such as 4G, 5G or Wi-Fi must be licensed on fair, reasonable and non-discriminatory (FRAND) terms. Following the CJEU judgment in Huawei v ZTE and the case law of the Federal Court of Justice, an injunction is available if the implementer does not show itself to be a willing licensee. In January 2026 the Federal Court of Justice confirmed in FRAND-Einwand III that this willingness must be genuine and continue throughout the negotiations. The Unified Patent Court has also ruled on FRAND defences. We advise SEP holders on essentiality analysis, licence offers and enforcement, and implementers on counter-offers, security and the FRAND defence.

Entitlement actions (vindication)

If a patent has been applied for by someone who is not entitled to the invention, for example a former employee, contractual partner or co-developer, the true owner can demand transfer of the application or patent (Section 8 Patent Act, Art. 61 EPC). Against a holder in good faith, the claim must be asserted within two years of publication of the grant. At the EPO, grant proceedings can be stayed while entitlement proceedings are pending. Usurpation is also a ground for opposition.

Utility model infringement

A German utility model is registered without substantive examination. In infringement proceedings the court therefore examines validity itself, and the defendant can argue that the utility model is not new or not inventive without a separate cancellation action. This makes enforcement fast but riskier. Processes cannot be protected by a utility model. Before asserting a utility model, we recommend a thorough prior art search.

Cross-border infringement

A single action at the Unified Patent Court can cover all participating member states in which a European patent with unitary effect or a non-opted-out European patent is in force. Since the CJEU judgment in BSH v Electrolux (2025), national courts may also decide on infringement of foreign parts of a European patent if the defendant is domiciled in their jurisdiction. Customs seizure applications stop infringing goods at the EU external border. We coordinate parallel proceedings with partner firms abroad.

Mediation and arbitration

Not every patent dispute needs a judgment. Licensing disputes, disputes between joint developers and FRAND rate disputes in particular can often be resolved by mediation or arbitration. Options include the WIPO Arbitration and Mediation Center and the Patent Mediation and Arbitration Centre (PMAC) of the Unified Patent Court with seats in Ljubljana and Lisbon. Confidentiality and a decision by experts are the main advantages.

Costs and litigation risk

In German proceedings the losing party bears the court fees and the statutory fees of the winning party’s attorney-at-law and patent attorney. Both depend on the value in dispute. At the Unified Patent Court, recoverable representation costs are capped by scale according to the value in dispute. We assess the cost risk at the outset, including the cost of a parallel nullity action or opposition, and discuss litigation funding and insurance where appropriate.