Dawn Raids on Suspected Patent Infringers: German Federal Supreme Court Confirms Patent Owner's Access to Competitor's Premises

German courts are popular for litigating patents because they are known to be competent, fast, comparatively inexpensive, and generally patent-owner friendly. Until recently, however, the drawback remained that the German legal system did not provide for a discovery process, as is common in the United States and the United Kingdom, for example. Furthermore, a plaintiff in Germany must collect and present all evidence needed to prove its case, no matter how difficult this may be. For many years, therefore, a suspected infringer in Germany simply could rely on practicing a patented method behind closed and locked doors, with only a marginal chance of facing legal dispute with a patent owner.

This situation already had been gradually changing over the past few years, and now those days are over once and for all. With a decision published on February 23, 2010, the German Federal Supreme Court has confirmed that the "dawn raid" procedure against suspected patent infringers that has emerged under case law recently is in accordance with German law, and it has set out clear guidelines for the procedure.

"Dawn Raids" on Suspected Patent Infringers

If they can show a certain likelihood of infringement, patent owners can obtain an ex parte order from a German court granting them access to the premises of a competitor who is suspected of infringing their patent. This covers in particular production facilities, laboratories, and R&D sites, no matter how secret and protected the premises may be.

Such inspection proceedings or "dawn raids" are carried out by a court-appointed expert, accompanied by a court marshal or sometimes even police officers, and two to three attorneys as counsel for the patent owner, usually a litigation-focused attorney and a patent attorney. This larger team can appear without prior warning at the site that is to be inspected and enforce access, usually simultaneously serving a court order on the management of the facility. The expert will then proceed to inspect the allegedly patent-infringing device or process and may take pictures, partially dismantle devices, and take samples. After completing this inspection, the expert will summarize its findings in an expert opinion, which will be admissible as binding evidence in subsequent patent infringement proceedings.

Protection of Defendant's Business Secrets?

Obviously, such an intrusion into the heart of the premises of a competitor raises concerns about protection of business...