Fundamentals of the Federal Patent law in Germany

According to § 139 (1), anyone who uses an invention protected by patent can be sued for injunction. In addition, § 139(2) states that the person who uses a protected invention, intentionally or negligently, is liable to pay damages to the infringed party.

§139 BPatG

• Any person who uses a patented invention in contravention of Sections 9 to 13 may be sued by the infringed party for an injunction if there is a risk of repetition. The claim shall also exist if an infringement is threatened for the first time. ...
• Whoever performs the act intentionally or negligently is obliged to compensate the infringed party for the resulting damage. ...

In particular, § 139 (2) BPatG is to be dealt with here, where it is stated that the negligent infringer is also obliged to pay damages. What exactly is negligence?

According to the Civil Code (BGB) § 276, the liability of the debtor results directly from paragraph 2:

§276 BGB

(2) Anyone who fails to exercise the due care required in traffic is guilty of negligence.

In the field of industrial property protection, the required diligence includes in any case the duty to inform, which every trader has to observe. A trader can be expected to keep himself informed about the intellectual property rights of others in his field of activity. It is a matter of checking that one does not violate laws - also in the patent and trademark area. As we all know, the saying "Stupidity does not protect from punishment" always applies.

If a trader fails to carry out an investigation of a type and scope that can reasonably be expected of him, he is at fault, especially if he has or could have had concrete indications of the existence of an industrial property right.

I.e. it can be stated that the patent legislation does not only concern persons or companies who themselves apply for patents or make inventions. For the Patent Act also states in

§9 BPatG:

The patent has the effect that only the patent owner is authorized to use the patented invention within the scope of the applicable law. Any third party is prohibited, without the consent of the patentee, from manufacture,

• offer for sale, put on the market or use a product which is the subject matter of the patent, or either import or possess it for the aforementioned purposes;
• to apply a process which is the subject matter of the patent or, if the third party knows or it is obvious from the circumstances that the application of the process is prohibited without the consent of the patentee, to offer it for application within the scope of this Act;
• to offer, place on the market or use the product directly obtained by a process which is the subject matter of the patent, or either to import or possess it for the said purposes.

This means that if you commercially produce something or put it on the market (e.g. by selling it) that is protected by patent law and not approved by the patent owner, you are committing a legal violation of § 9 of the Patent Act.

Conclusions from these Fundamentals of the Federal Patent Law in Germany: CEOs and managers often react with incomprehension when they are asked about their own patent system. But this short excursion into the legal basics of the matter shows that the regulations concerning patents affect almost every businessman. Therefore, our recommendation is to clarify things rather than to get into trouble unexpectedly later on. In any case, it is a frightening vision if a supplier would violate the patent law. Even then, one may be forced to quickly shut down one's own production or manufacturing. Once production has been shut down, good advice becomes expensive and the damage to one's own company incalculable.