Course of proceedings

The procedural rules can be found in the respective provisions of the laws of patent, utility models, semi-conductor protection, trade marks, designs, and plant varieties. If these laws do not include procedural rules, the provisions of the Courts Constitution Act and the Civil Procedure Code find
supplemental and corresponding application; however, this applies only in cases where the special nature of the proceedings does not exclude such applicability.

The proceedings before the Federal Patent Court are not introduced ex officio; rather, they are commenced only upon motion of those participating, i.e., by submitting a complaint or an appeal. The participants may generally also terminate the proceedings at any time by withdrawing their motion. The only exception to this is the withdrawal of opposition in patent proceedings, which only ends the participation in the proceedings of the person who filed the opposition, and not the opposition proceedings themselves. Furthermore, the plaintiff’s motion defines the subject matter of the proceedings. Only within that scope does the Federal Patent Court make a decision on the motion or complaint.

The proceedings before the Federal Patent Court are governed by the principle of ex officio investigations. This means that as a general rule, the Court is not limited to taking into account the facts that have been submitted by the parties. Rather, the Federal Patent Court must ascertain the facts of the case ex officio; it is not bound by the submissions and evidentiary motions of the participants.

There is no requirement to be represented by an attorney in proceedings before the Federal Patent Court; the participants may conduct the proceedings themselves without legal counsel. But they may also elect to be represented by a lawyer or patent attorney. If certain conditions have been met, other natural and legal persons are also allowed to function as authorised representatives. Only participants (including German nationals or companies) who do not have a residence or branch office in Germany are required to hire a patent attorney or lawyer in order to participate in proceedings before the patent court. Lawyers or patent attorneys from a Member State of the EU or the EEC are also authorised to appear before the Federal Patent Court.

Complaints or actions submitted to the Federal Patent Court are allocated to the competent board according to the court business roster following issuance of a file number. After all participants to the proceedings have had the opportunity to state their position, the board member designated by the
internal business roster as the reporting judge compiles a written result, to which the other board members, following perusal of the files, submit their opinion – usually also in writing. At that point, the presiding judge sets a date for a consultation or an oral hearing. In revocation proceedings, before
the oral hearing takes place the board generally makes written qualified indications pursuant to section 83 of the Patent Act. Indications are generally also issued along with the notification of the date of the oral hearing.

In revocation and compulsory licence proceedings, an oral hearing takes place as a general rule. In other types of cases, the codes of procedure generally provide for a written procedure. However, an oral hearing will take place if one of the proceeding participants has moved for one, if witnesses
need to be examined, or if the board considers an oral hearing to be useful. Following the conclusion of the oral hearing, the board goes into confidential session to reach its decision, which is announced immediately thereafter or on a subsequent date. Instead of an oral announcement, the decision may also be sent in written form to the participants. The Nullity Boards make decisions on the cases before them by judgment. The decisions of the Boards of Appeal are issued in the form of orders.

Unlike administrative court proceedings, in which the authority which issued the challenged administrative act takes on the position of a participant in the proceedings, neither the German Patent and Trade Mark Office nor the Federal Plant Variety Office automatically participate in the appellate
proceedings concerning their decisions. If considered appropriate due to a legal issue of fundamental importance, the Federal Patent Court may provide the President of the German Patent and Trade Mark Office with the opportunity to join the appeal. The President of the Federal Plant Variety Office may join an appeal at any time.