German government issues a new lockdown - and a patent reform

The things that can happen in a day...

The patent community has been looking forward to this day for some weeks now, but not because of the new lockdown in Germany. After the Ministry of Justice had published a revised draft to reform the German Patent Act, it was scheduled for discussion at Cabinet level. This has finally happened, and the draft passed, without further changes to the most important provisions, dealing with proportionality tests for the grant of injections, further alignment in the German bifurcation System and enhanced protection of business secrets in patent litigation. In the afternoon, the government them turned to a proportionality test of its own to decide on further COVID-related restrictions...

The draft ist available for download in German. The most important aspect is set to be the explicit statutory requirement to restrict the grant of an injunction in exceptional cases where an injunction would lead to disproportionate results. This has been a hotly contested topic in Germany for the past years. The new provision will shift Germany closer to the practice in the UK although not nearly to how the US handles injunctions for patent infringement. A key consideration was limiting the enforcement of patents on small components that are incorporated into complex products, most prominently automobiles. But the new draft also explicitly mentions third party interests, which will lead to proportionality discussions also in Pharma cases, in particular in relation to life saving drugs. The next years will show whether this will lead to a shift in the German injunction practice or whether the proportionality test will share the fate of a related instrument - the compulsory license, which is hardly relevant in practice these days.