Germany recently passed a reform bill for the Patent Act (PatG) and its new provisions will likely be coming into force sooner rather than later. The reform is particularly relevant for companies from the life sciences sector, which often litigate in this pro-patentee jurisdiction. The modifications to PatG address:
- Confidentiality concerns. New section 145a PatG states the relevant provisions of the Trade Secrets Act will also now apply in patent infringement cases. In short, Germany extends the confidentiality club to patent proceedings.
- Codification of the principle of proportionality, which currently leaves significant room for interpretation.
- Implications. The reference to “third party interests” in the context of proportionality is not a welcome development, because it may limit the availability of preliminary and permanent injunctions. That said, we are yet to see how the courts will interpret the codified principle, and the open wording of the new provisions may enable judges to decide cases in a more flexible manner than is currently possible. The extension of the confidentiality club definitely is a step in the right direction, because it addresses potential concerns of litigants, which otherwise would not be prepared to disclose commercially sensitive information or technical know-how in court.