Patent Litigation in Germany

Patent litigation in Germany in brief

Patent litigation in Germany is fast, technically sophisticated and, for patentees, unusually powerful. Infringement claims are heard by specialised chambers at a small number of regional courts, most prominently in Düsseldorf, Mannheim and Munich, which typically reach a first-instance decision far sooner than courts in many other European countries. Validity is decided in separate proceedings before the Federal Patent Court (Bundespatentgericht) or in opposition proceedings at the German Patent and Trade Mark Office (DPMA) or the European Patent Office (EPO). An injunction is the standard remedy for infringement, and it can be enforced provisionally once a first-instance judgment is handed down, subject to security.

Since June 2023, patentees have also been able to sue in the Unified Patent Court, which has four local divisions in Germany. National patent litigation nevertheless remains central: German patents and European patents opted out of the UPC can only be enforced nationally, and many patentees still prefer the predictability of the German courts. This page explains how infringement and nullity proceedings work, what remedies are available and how defendants can respond. For UPC proceedings, see our page on the Unified Patent Court and Unitary Patent.

Courts and jurisdiction in German patent cases

All claims arising under the Patent Act (Patentgesetz, PatG) are "patent disputes" for which the civil chambers of the regional courts (Landgerichte) have exclusive jurisdiction regardless of the value in dispute (§ 143(1) PatG). The federal states may concentrate these cases at one regional court for several districts (§ 143(2) PatG), and they have done so. In practice, the patent chambers in Düsseldorf, Mannheim and Munich hear the majority of cases; other concentrated courts also have patent chambers. Appeals go to the competent Higher Regional Court (Oberlandesgericht) and, on points of law, to the Federal Court of Justice (Bundesgerichtshof, BGH).

The choice between courts matters. The chambers differ in their procedural style, in how readily they stay infringement proceedings pending a validity challenge and in the timing of hearings. International jurisdiction follows the Brussels Ia Regulation: German courts can hear infringement of the German patent or German part of a European patent against any infringer acting in Germany, and, following the CJEU's ruling in BSH Hausgeräte (CJEU, judgment of 25 February 2025, C-339/22), courts at the defendant's domicile may also decide on infringement of foreign patents even if validity is challenged.

The infringement action: procedure and timing

An infringement action is begun by a statement of claim that identifies the patent, the attacked embodiment and the claimed infringing acts. A patent prohibits third parties from making, offering, putting on the market, using, importing or possessing a patented product, and from using a patented process or offering it for use in Germany (§ 9 PatG). Indirect infringement, supplying means relating to an essential element of the invention for use in Germany, is also actionable. Certain acts are exempt, such as private non-commercial use, experimental use and studies needed for marketing authorisation of medicinal products (§ 11 PatG).

German patent proceedings are front-loaded and written. Courts expect detailed technical submissions, often supported by private expert opinions, claim charts and test reports. Most chambers hold an early hearing or set a written preliminary procedure, followed by a main oral hearing. The court interprets the patent claims itself, often without appointing an expert, because patent chambers have extensive technical experience. Where the court cannot resolve a technical question, it appoints an independent expert, which adds months to the timetable.

Securing evidence

Where infringement is sufficiently likely, the patentee can demand inspection of a device or process or production of documents (§ 140c PatG). For infringements on a commercial scale, the claim extends to bank, financial and commercial documents (§ 140d PatG). In practice, inspection is usually ordered in an independent evidence procedure, carried out by a court-appointed expert, with access to the expert report restricted to protect the defendant's confidential information. Confidentiality in the main proceedings is protected by applying §§ 16 to 20 of the Trade Secrets Act (§ 145a PatG).

Remedies in patent litigation: injunctions, damages and proportionality

The patentee can claim an injunction where there is a risk of repeated infringement, or where infringement is imminent (§ 139(1) PatG). Since the 2021 reform, the injunction is excluded where its enforcement would, due to the special circumstances of the individual case and good faith, lead to disproportionate hardship for the infringer or third parties that is not justified by the exclusive right. The patentee then receives appropriate monetary compensation, and its damages claim remains unaffected. Courts apply this exception restrictively; a general interest in continuing to sell infringing products is not enough.

Damages require intent or negligence, which German courts readily assume for commercial actors who are expected to check the patent situation (§ 139(2) PatG). The patentee may calculate damages by reference to its own lost profit, the infringer's profit attributable to the infringement or a reasonable licence fee. In practice, the infringement judgment usually establishes liability for damages in principle and orders the infringer to render accounts; the amount is then determined in subsequent proceedings or by settlement.

Further claims include information about the origin and distribution channels of infringing products (§ 140b PatG), destruction of infringing products (§ 140a(1) PatG), recall and definitive removal from the distribution channels, and publication of the judgment where there is a legitimate interest (§ 140e PatG). Limitation is governed by the general rules of the Civil Code, with a residual claim for unjust enrichment (§ 141 PatG).

Patent litigation and validity challenges: bifurcation

A defining feature of patent litigation in Germany is bifurcation: the infringement court does not decide on validity. A defendant who believes the patent is invalid must file a nullity action with the Federal Patent Court (§ 81 PatG) or, within nine months of grant, an opposition at the DPMA or EPO (§ 59 PatG; Article 99 EPC). It can then ask the infringement court to stay its proceedings under § 148 of the Code of Civil Procedure (Zivilprozessordnung, ZPO). Courts grant a stay only if they consider it highly likely that the patent will be revoked or limited in a way that removes the infringement.

Because nullity proceedings have traditionally taken longer than infringement proceedings, a patentee can obtain and enforce an injunction before the validity of the patent has been tested in court. To narrow this "injunction gap", the 2021 reform requires the Federal Patent Court to give a qualified preliminary opinion, which should be issued within six months of service of the nullity action and is also sent to the infringement court (§ 83(1) PatG). Infringement courts increasingly take this opinion into account when deciding on a stay. Appeals against nullity judgments go to the BGH (§ 110 PatG). Our insight on the injunction gap and bifurcation explores the strategic consequences.

Defence strategy

• Non-infringement: challenge the claim construction and the evidence on the attacked embodiment; consider design-arounds early.
• Invalidity: file the nullity action or opposition promptly and with the best prior art, to support a stay application.
• Prior use and licences: check private prior use rights and existing licences, including licences that survive a transfer of the patent.
• FRAND defence: for standard-essential patents, the antitrust compulsory licence defence requires the implementer to show a sustained willingness to take a licence.
• Protective letters: if a preliminary injunction is expected, file a protective letter in the central electronic register so that the court hears the defence before deciding.

SEP litigation, FRAND and border measures

Germany is a leading venue for the enforcement of standard-essential patents (SEPs) in telecommunications, video coding and connected devices. Implementers regularly raise the defence that the SEP holder abuses a dominant position under Article 102 TFEU by seeking an injunction.

German courts apply the negotiation framework set by the CJEU in Huawei v ZTE (C-170/13) as interpreted by the BGH, which looks at the implementer's overall conduct. In its judgment of 27 January 2026 – KZR 10/25, the BGH's Cartel Senate upheld an injunction because the defendant, viewed in the round, had shown no serious interest in a licence. Our analysis of SEP and FRAND disputes covers the case law in detail.

Patent rights can also be enforced at the border. Customs authorities detain goods suspected of infringing a patent on the basis of Regulation (EU) No 608/2013, after the rightholder has filed an application for action. Outside the scope of that regulation, for example in intra-EU traffic, § 142a PatG allows seizure on import or export where the infringement is obvious, upon application and against security. Border measures are particularly effective at trade fairs and for products manufactured outside the EU.

Trade fairs in Germany are a classic setting for patent enforcement. Patentees can apply for preliminary injunctions against exhibitors, and courts can decide quickly where the infringement is clear and the patent has survived a validity challenge. Exhibitors from abroad should check their freedom to operate before attending, and consider filing protective letters if they expect to be targeted.

Costs, timing and planning a German patent case

German patent litigation operates under the loser-pays principle. The losing party reimburses the statutory court fees and the winning party's lawyers' fees calculated on the value in dispute under the Lawyers' Remuneration Act, plus patent attorney fees where a patent attorney is involved. Actual fees often exceed the recoverable amount, so a winning party rarely recovers all its costs. Claimants domiciled outside the EU or EEA may be required to provide security for the defendant's costs.

Planning a case involves several parallel tracks: the infringement action, the anticipated nullity action or opposition, any UPC proceedings concerning the same or related patents, and settlement negotiations. Companies with global disputes should coordinate the German case with proceedings in other jurisdictions, since a German injunction in a key market often drives a worldwide licence. For employee inventions, check that rights have been properly claimed under the Employee Inventions Act before suing; see our insight on employee inventions.

Utility models as a litigation tool

Utility models are often overlooked in patent litigation strategy. Because they are registered without substantive examination, they can be obtained quickly, including by branching off from a pending patent application, and then asserted in the same courts. Unlike patents, the infringement court assesses the validity of a utility model itself, unless it stays the case for cancellation proceedings at the DPMA. A utility model can therefore close a gap where the parallel patent is still in examination or opposition. See our note on utility models in Germany.

Illustration: a hypothetical machine manufacturer learns that a competitor will present a copied component at a German trade fair in six weeks. Its European patent is under opposition at the EPO, so a preliminary injunction based on the patent looks uncertain. The manufacturer branches off a German utility model from its still-pending German patent application, has it registered, and applies for a preliminary injunction based on both rights. Whether the court grants relief will depend on how clearly infringement is shown and how robust the utility model appears, but the additional right strengthens the application considerably.

Settlement and licensing

Most patent disputes end in a settlement, often a licence. Settlements should address past damages, the scope of the licence, the treatment of pending nullity actions and oppositions, and parallel proceedings abroad or at the UPC. No-challenge clauses and other restrictions require a competition law review, particularly under the EU technology transfer rules.

How TRW & Co helps

We act for patentees and defendants in patent litigation in Germany, from pre-action analysis and evidence-gathering to infringement trials, preliminary injunctions, appeals and enforcement. We coordinate infringement defences with nullity actions and oppositions, prepare stay applications and develop FRAND negotiation strategies for SEP disputes. We work hand in hand with patent attorneys on technical issues and align German proceedings with UPC and foreign actions. We also advise on border measures, trade fair enforcement and settlement and licence agreements. To discuss a case, please contact us. For a wider overview, see our IP and patents page. This page is general information and not legal advice.