CHANGE OF CASE LAW CONCERNING THE REIMBURSEMENT OF FEES IN INVALIDITY PROCEEDINGS AGAINST THE GERMAN PART OF A EUROPEAN PATENT OR A GERMAN NATIONAL PATENT

In two recent decisions the German Federal Patent Court has changed its opinion regarding the issue of reimbursement of fees. As a general principle, German procedural law provides that in court proceedings the losing party has to reimburse the winning party for the costs related to the proceedings. However, in order to reduce the overall cost risk, until now, the case law of the German Federal Patent Court stated that in proceedings concerning the invalidity of a patent either the fees caused by the representation of a patent attorney or the fees caused by the representation of an attorney-at-law, but not both in parallel, are fully reimburseable.

According to two brand-new German Federal Patent Court’s decisions, this now has changed. According to these decisions, the fees caused by the representation of a patent attorney as well as the fees of an attorney-at-law are fully reimbursable.

Depending on whether the client is the winning or the losing party, this change of case law is fortunate or unfortunate for him. For the losing party, the total cost risk has increased. For the winning party, patent invalidity proceedings can be almost cost-free.