German Federal Supreme Court in re „Kurznachrichten“, docket no. X ZR 61/13
The attractiveness of litigating patents in Germany resides to a great extent in the bifurcated system which provides for separate and distinct proceedings concerning infringement on the one hand and invalidity on the other. Above all, this separation is for the following three reasons a privilege to the patentee: firstly, infringement proceedings are faster than invalidity proceedings, secondly, they are rarely stayed by the infringement trial courts in light of parallel invalidity proceedings and thirdly, it is very difficult to suspend the enforcement of provisionally enforceable infringement decisions.
The recent decision “Kurznachrichten” dated 16 September 2014 of the German Federal Supreme Court is of great importance in that context. In the operating provisions of this decision it is clearly spelled out that the enforcement of non-final infringement decisions must as a matter of principle be suspended if the patent in dispute is declared invalid in first instance invalidity proceedings. Only, if such invalidity decision is evidently wrong, a different approach might apply.