This is in follow up to our IP newsletter of September 1, 2016. The German Federal Patent Court now issued an urgent notice with the following content:
In compulsory license proceedings, regarding the question whether the license seeker has made unsuccessful efforts to obtain authorization for use of the invention on reasonable commercial terms and conditions (Sec. 24 Para. 1 No. 1 Patents Act), the primary focus has to be put on the perspective of the license seeker. It is only required by him to make attempts to obtain a license on conditions that a reasonable, economically thinking third party would be willing to accept in this situation, allowing room for certain negotiations – under the reservation that such efforts are not feigned. Thereby, he could consider circumstances, which challenge the validity of the respective patent from his point of view.
The offer of the license seeker need not meet the requirements of a compulsory license under anti-trust laws or the anti-trust objection of compulsory license.
Next to the urgency in the meaning of Sec. 85 Para. 1 Patents Act, the procedural urgency (in the meaning of Secs. 935, 940 ZPO – German Code of Civil Procedure) is not an additional requirement for the grant of a preliminary injunction under Sec. 85 Para. 1 Patents Act.
The complete decision is already published in BeckRS 2016, 113453. An English translation will follow soon. Our Munich partner, Fritz Lahrtz who is one of the leaders of the litigation team representing the proprietor of the patent, would be happy to give you more detailed information about the decision.