The new law is aimed to better align the bifurcated German infringement and nullity proceedings which are dealt with by two different courts, i.e. a state court and the Federal patent Court, respectively. The purpose of the amendment is to accelerate the nullity proceedings in order to close the so-called injunction gap that often resulted from the infringement case being concluded while the nullity case was still ongoing.
The procedural measures aimed at the acceleration are basically the following:
A two-month time limit for the defendant of the nullity proceedings to not only file a formal notice of opposition against the nullification request but also to provide comprehensive facts and arguments in defense of the request.
An extension of the two-month time limit is only possible under exceptional circumstances. The defendant needs to provide convincing evidence for the presence of the exceptional circumstances.
A six-month term for the Federal patent Court to issue its preliminary opinion on validity. The preliminary opinion is communicated to the infringement court to enable the infringement court to assess the merits of the nullification request and decide whether to stay the infringement procedure in order to wait for the outcome of the nullity proceedings.
The plaintiff will be given a short time limit to respond to the opposition of not more than two months to enable the Federal patent Court to provide their preliminary opinion.
The six-month term applies only for nullity proceedings that became pending on or after May 1, 2022; it does not apply to nullity proceedings that were already pending at this time.
For those older pending nullity proceedings, the Federal patent Court will not provide their preliminary opinion within six-months, but it will take typically over a year or one and half years. In view of the limited capacity of the Federal patent Court the amended German patent law will thus lead to some delay of the older pending nullity proceedings for the benefit of the newer ones.
Practical advice: the parties should limit their submissions to the points of central importance in order to enable the Federal patent Court to provide a high-quality preliminary opinion within the six-month term and to schedule the older cases within a reasonable delay.