A new decision by Germany’s Federal Supreme Court sheds further light on what measures may be taken to protect the confidentiality interests of parties affected by court orders authorising the inspection of devices on their business premises.
A new decision by Germany’s Federal Supreme Court handed down in November 2009 sheds further light on what measures may be taken to protect the confidentiality interests of parties affected by court orders authorising the inspection of devices on their business premises.
Prior to the court’s Faxkarte decision in 2002, patent owners had a slim chance of successfully asserting a claim for inspection of a device that they alleged infringed a patent. Until Faxkarte, German courts only granted the statutory claim for inspection if the patent owner could establish “a high likelihood” of patent infringement. If there was considerable doubt whether one or two features of a patent claim were realised, a claim for inspection was almost bound to fail.
Faxkarte changed the situation in that the threshold for inspection claims was lowered to “a certain likelihood” of infringement. Two years later, the European Enforcement Directive instructed the member states to introduce means for inspecting goods, which Germany implemented with a new Section (140c) of its Patent Act.
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Germany Federal Supreme Court, Faxkarte, inspections, patent infringement
