Divided Patent Infringement in Germany

McDermott Will & Emery
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This article provides an overview of how divided patent infringement is viewed in Germany.

The article is addressed to US Patent Counsel dealing with international patent portfolios. There are situations, in particular in the computing arts context, where inventions involving methods or systems might be put in practice by a plurality of actors. Related strategic considerations from a German perspective are highlighted in the present article.

A party that practices every element of a patent claim is a direct infringer. There is essentially no difference between the United States and Germany regarding this definition. However, a situation may arise in which no single party can be found to practice all elements of a claim, but multiple parties combine to do so. This situation, known as “divided infringement” or “joint infringement,” may occur in cases of method claims, in which multiple actors individually perform the different method steps, and only their combined efforts cover all elements of the patent claim. For example, if a claim has three steps, and one entity performs the first step and another entity performs the next two steps, each entity could assert that it is not liable for infringement because it does not perform all steps of the method. The same issue may apply to system claims, in which the system is put in service by different people. Of particular importance are claims in the computing arts context, involving, for instance, actions or functionalities to be implemented on a server side and a client side.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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