German Federal Supreme Court “Seal System” - Obligations of a Foreign Patent Infringing Entity

In its “Seal System” decision of May 16, 2017 (X ZR 120/15), the German Federal Supreme Court tightens the rules concerning obligations and liabilities of a foreign defendant: The claim for recall of patent infringing products from the channels of trade could also be directed against a foreign defendant. Moreover, the court held that such claim existed in parallel to a claim for removal from the channels of trade. The claim for removal from the channels of trade obliged the defendant to exploit all available and reasonable means to prevent distribution of the patent infringing products. This could require more than just requesting to return these products, and could even require that legal actions be initiated A foreign entity that delivers patent infringing products to another foreign entity may be obliged to examine whether the products might be delivered into Germany. The decision imposes quite far reaching obligations and liabilities to the foreign deliverer.