LEGAL DECISIONS

24.09.2021: Patent recall claim for patentees gains importance through Higher Regional Court (OLG) decision

The OLG Düsseldorf has extended the requirements for the fulfillment of a recall claim in patent law - in favor of the patent owner. According to previous case law, the patent infringer had to "seriously" request all commercial customers to return the infringing products.

In addition, it has now been established that the infringer must prove that the recall actually took place by producing written documents.

In this context, the OLG Düsseldorf clarifies that the patent infringer is also regularly obliged to disclose all addressees of the recall letter to the patent owner. This claim, together with the inspection of at least one sample letter to the purchasers, is intended to give the patent proprietor an opportunity to verify whether the recall action was carried out with the necessary vigor. For example, a serious recall exists if the reason for the recall (i.e., patent infringement) is also clearly communicated, and it is not implied that the return is generally voluntary.

Practical tip:

With the decisions of the OLG, the recall claim in patent law gains further importance and improves the situation of the patent owner in enforcement. This also increases the pressure on market participants to monitor and observe third-party patents.

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