German Federal Supreme Court “Vacum Transport System” - Relation between appeal and an action for re-trial of a case

The bifurcation in German patent infringement trials (patent infringement proceedings on one hand and patent nullity action/opposition on the other) may lead to the situation that an infringement court renders a judgment in favor of the patentee – and it is only later that the patent is held invalid. So far, the procedural way of the deemed patent infringer to challenge the infringement judgment was either an action for re-trial of the case or an appeal on questions of law with the German Federal Supreme Court. In a recent decision, dated January 10, 2017, (“Vacuum Transport System”) the German Federal Supreme Court limits the availability of an action for re-trial of the case. In essence, the deemed infringer must pursue the procedural path of an appeal on questions of law as long as this is at all possible. This obligation comprises the procedural path to file a request for re-establishment of the right to file an appeal on questions of law in case that the time limit for such an appeal has already expired. The practitioner needs to know this decision in case that an infringement court ruled against the defendant and the patent is later revoked or restricted.