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German patent courts and appeals

About patent courts
and appeals in:

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This article describes which bodies handle approval, rejection, and disputes of patent validity in Germany.

The case law in Germany includes substantive decisions on software patents.

German courts have an unusual system of first publishing just the bare decision (guilty / not guilty), and then publishing the full text much later - one month later for the BGH,[1] or three or four months later for the BPatG.[2] (This might be related to the fact that the losing party has one month to decide whether to file an appeal.[3])

The highest courts

  • BGH = Bundesgerichtshof = Federal Court of Justice (which is in Karlsruhe)
  • BPatG = Bundespatentgericht = Federal Patent Court (which is in Munich)
  • BVerfG = Bundesverfassungsgericht = Constitutional Court

The BGH is the most important for patents.

Note: Some experts use the name "German Supreme Court" for the BGH, but others use that term for the BVerfG. To avoid ambiguity, it's probably best to simply avoid the word "Supreme" when trying to translate the names of these courts.

BGH (Bundesgerichtshof)

Highest court for patent cases.

Patent appeals (and all "IP" appeals) are heard by the tenth senate ("panel"), which explains why the case codes begin with "X".

BPatG (Bundespatentgericht)

Rulings can be appealed to the BGH. You go here to invalidate patents (but I don't know what else this court does, or if other courts can also invalidate patents).

The BPatG's rulings can be found at:

The court is made up of various "senates" (also called "panels"), each with a code. The code for the "Second Nullity Senate" (president: Judge Vivian Sredl) is "2 Ni". So to find "second nullity rulings", search for "2 Ni" in the "Aktenzeichen" (case numbers).

BVerfG (Bundesverfassungsgericht)

No one seems to talk about the BVerfG. Former Chief Judge of the USA's CAFC, Paul Redmond Michel, said that the BVerfG can't review BGH decisions on patents:[4]

When the German judge talked he pointed out that although he’s on the German Supreme Court, they have specialization within their court, and he’s part of the Tenth Senate which does all the IP cases, and only IP cases. And the only higher court in Germany is the so-called Constitutional Court, and it’s not allowed to hear patent cases. And therefore, it can’t overrule or tinker with the law developed by the German Supreme Courts Patent Senate.

When he says "Supreme Court", he's talking about the BGH (Federal Court of Justice).

Other sources indicate that it could review a BGH decision, but only if there was a doubt as to compatibility with the Constitution. There seems to be no discussion of this being useful in cases of software patents, so the BVerfG seems unlikely to be useful against pro-software-patent BGH decisions.

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