Matthias Rößler - 7. January 2019

Patent infringement at trade fairs - what can you do?

If a patent owner discovers a patent-infringing product of another exhibitor at a trade fair, one can straight away apply for a preliminary injunction. This enables the patentee to remove the infringing product quickly and effectively.

What should be considered in the case of a preliminary injunction?

The application must be filed at the responsible district court. When discovering a patent infringement at a trade fair, it is crucial that the patentee reacts as soon as possible. The earlier the responsible attorney-at-law or patent attorney gets involved, the better the legal specialist can support in quickly clarifying the situation. The applicant must demonstrate to the court as unequivocally as possible that he the referred patent is undoubtedly valid (if necessary, by means of the register excerpt), that patent infringement is (obviously) existent and that it is urgent to enforce the preliminary measure. The patentee should also outline the disadvantages caused by the infringement.

Seizure of the patent infringing products

Within the framework of a balancing of interests, the court examines whether a sufficiently clear situation exists and which of the opposing parties will have a greater damage.

If the court grants an injunction benefiting the patentee, the competitor's infringing products and catalogues can be seized with immediate effect. The injunctive relief can be enforced within 1-2 days and without prior involvement of the potential infringer.

What is the risk for the patentee?

In the event that the preliminary injunction proves to be unjustified after it has been issued and enforced, the patentee can be held responsible for the associated damage. An injunction may become unjustified if it turns out that either there was no infringement or that the patent was not legally valid.

What should be considered before a trade fair?

For exhibitors at a trade fair with innovative and patent-protected products, it is recommended to research and observe exhibitors and their products in due time before the start of the trade fair. It may also be of advantage to discuss strategies against possible infringements relating to the presentation during a trade fair with a patent attorney or lawyer in advance. This enables a quick response in the case of identifying a potential infringement.

If, on the other hand, an exhibitor fears that such an injunction will be filed against him, a so-called protective brief could be filed shortly with the relevant courts before the trade fair. Thereby, a refusal of an application for a preliminary injunction or at least a hearing at the court can be achieved.

Regarding Matthias Rößler:

Matthias Rößler, German and European Patent Attorney since 2003, studied mechanical engineering at the RWTH Aachen. He is co-founding partner of karo IP. A main focus of his practice is the management of large patent portfolios and the enforcement of bilateral litigation proceedings before patent offices and patent courts. His additional qualification as Master of Laws (LL.M.) qualifies him especially for multinational infringement matters in Europe.

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