Obtaining Evidence of Infringement

Need to establish a high likelihood of infringement

Limitations regarding inspection

The court can order that C submits other evidence in its possession; these items can be inspected by an expert

Warning letter may stimulate C to start licensing negotiations.

However, C becomes aware of A’s plan to start litigations, and that may increase the risk that C files a negative declaratory action in one of the EU Member States having a slow jurisdiction

Preliminary injunctions are only available in clear-cut cases and if the validity of the patent-in-suit is uncontested or has been confirmed by Opposition proceedings/Federal Patent Court, and

if the case is urgent (e.g. initiated timely, danger of significant damage etc.)

Patent Litigation – Cost Issue

According to German procedural law, the losing party must pay the winner’s costs.

However, only standardized attorney fees and court costs can be recovered.

Overall, an average first instance patent infringement suit costs between 50.000 to 150.000 Euros.