Indirect Infringement and Contributory Infringement Under European and German Patent Law

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In Europe, patent law is governed by the European Patent Convention (EPC) of 1973, a multilateral treaty that led to the creation of the European Patent Organisation (EPOrg) in 1977. The EPOrg provides an autonomous legal system under which European patents are granted. However, each member nation retains its own distinct set of laws related to patent ownership, validity, and infringement. The following article discusses indirect and contributory infringement under this framework, with a focus on the application of German law.

Direct and Indirect Infringement

German law, like the other laws of the EPC member states, distinguishes direct from indirect infringement. Direct infringement is generally defined with reference to the two basic patent categories: product (device) claims and method (process) claims. Direct infringement requires (1) for a device patent, that the infringer manufactures, offers or puts on the market, or uses a device realizing the entirety of the features of an independent claim, or (2) for a method patent, that the infringer offers or practices a method realizing all steps of an independent claim.

The concept of indirect infringement provides a remedy for acts occurring prior to actual direct infringement. The claims allowed by Germany’s Patent Code, § 10, are directed against those who supply or offer “means” related to an essential element of the invention allowing it to be put into effect in Germany.

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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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