German Federal Supreme Court – Legal Interest for the Declaration of Non-Infringement

Birgit Kramer and Florian FussederThe German Federal Supreme Court has decided on what is necessary to establish a legal interest in a declaratory judgment of non-infringement under German law. The Supreme Court’s decision, which we will discuss in this post, is available in German (X ZR 62/16 – “Slug Bait”). The case concerned the declaration of non-infringement (“DNI”) of a patent protecting a process for manufacturing slug bait for slug traps. Before the DNI claimant had filed the action for a declaratory judgment, his premises in Germany had been inspected by the patentee in independent inspection proceedings. The expert report rendered in these proceedings did not find infringement. This caused the DNI claimant to file an action for the DNI. While the Regional Court had ruled in favour of the DNI claimant  in first instance proceedings, on appeal the Higher Regional Court dismissed the action as inadmissible for a lack of the…

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