General

Germany is a powerful industrial country in Europe, with a relatively perfect market environment. China's international trade enterprises are increasingly exporting to Germany, and intellectual property disputes often occur in Germany. "At present, intellectual property has become the necessary gateway for Chinese enterprises to enter the German market. Chinese enterprises going out need to understand the German intellectual property system before they can determine targeted measures to deal with potential disputes." At the recently held training meeting on coping strategies for international trade enterprises in intellectual property disputes in Germany, Jin Yilin, a lawyer from German Guanke Law Firm, introduced the German intellectual property environment, patent layout considerations and dispute response.

"As the product R&D and design capabilities of Chinese enterprises are gradually enhanced, the market brand capabilities are developing at a high speed. Now, Chinese enterprises and German enterprises are slowly shifting from a complementary relationship to a relationship of competition and cooperation." Jin Yilin said that in Germany, competition in the fields of telecommunications, electronic products, medical devices and new energy is intensifying, which is easy to trigger large-scale lawsuits. The upstream supply chain of traditional industries is still mainly complementary, but the litigation risk will increase sharply after the competition intensifies in the future. E-commerce disputes occur frequently, often in the form of platform complaints, and the competition situation is chaotic.

In terms of patent layout, Jin Yilin believes that international trade enterprises need to deeply understand the characteristics of European invention patents. European and American enterprises have early layout and a large number of authorizations. The scope of claims interpretation is based on the literal meaning of independent claims. In principle, no examples are used to limit the interpretation of claims. In case of disputes, it is very difficult to invalidate in a wide range after missing the objection period, and it is difficult to predict the consequences of transnational infringement, so an experienced professional organization should be selected for consultation.

At present, many international trade enterprises still focus on passive response to intellectual property rights, and can try to strengthen active risk management. "Understand the differences in litigation culture between China and Europe, actively use public opinions, objections and other tools, and carry out thematic avoidance design according to the specific situation of Germany." In terms of practical operation, Jin Yilin suggested that enterprises establish more flexible channels, "If the distribution or logistics channel of an enterprise relies on the infrastructure such as subsidiaries or ports in a single country, once a single country ban is obtained, it may greatly hinder the sales in multiple countries. The coordination ability of the enterprise's intellectual property department should be strengthened, and the local lawyer team with Chinese communication ability should be selected. When signing subsidiaries and supply contracts, the risk of intellectual property litigation should be considered to avoid."

It is worth noting that after the amendment of the German Patent Law, the defendant's burden of proof was emphasized, which increased the complexity of the proceedings. It is understood that the German Patent Law has added an exception clause based on the principle of proportionality. According to the provisions, if, based on the special circumstances of a case and the principle of good faith, claiming the right of claim would cause the rights and interests of the infringer or a third party to be disproportionate, the application of the right of claim is excluded.

This will lead to increased risk in specific industries in litigation. For example, Jin Yilin said that if an upstream supplier component (such as a communication chip) infringes, the court should, upon the request of the obligee, issue an injunction against the manufacturer of end products (such as cars), which may lead to huge losses, so it is unfavorable for complex products and industries with long supply chains (such as the automobile industry).

In addition, there is a growing trend of temporary injunctions, which is worthy of enterprise vigilance. Jin Yilin said that the German case law requires that, in principle, only when the invention patent has been (partially) maintained through the first instance objection or invalidation procedure or other types of situations, can a pre litigation temporary injunction be issued based on the invention patent. Other circumstances include: extensive licensing; A large number of authorized peers and well-known patents that no competitors dare to challenge all the year round; The defendant can only provide very weak comparative documents when replying to the warning letter.

"The temporary injunction in the field of German intellectual property has become an unavoidable obstacle for many Chinese enterprises to go to Germany for development and participate in exhibitions, which requires professionals from intellectual property service institutions to make relevant layout and response." Jin Yilin said.

In view of these new changes in the German intellectual property environment, Jin Yilin suggested that international trade enterprises should do a good job of overseas patent early warning in advance. Have a comprehensive understanding of competitors, and timely assess the dispute risk, including the potential dispute object, risky products, and the court with jurisdiction over the dispute. If an intellectual property dispute is encountered in Germany, the appeal or defense grounds specified by law shall be used to actively respond.