To prevent competitors‘ products from coming undesirably close to patented products, there is the instrument of infringement action. The proceedings take place before certain chambers of the ordinary courts. The cost risk of the potential infringer is usually considerably higher than that of the patent proprietor. Both initially bear the risk of legal costs. However, the infringer has to bear the costs for damages and the costs for products that have already been produced but might not be usable any longer.
The claims arising from the infringement of an intellectual property right are manifold. The right to prohibit gives rise to a claim for injunctive relief. In practice, the claim for damages is very important. Additionally, further claims, such as claims for destruction of products infringing the patent or utility model, for recall and for the provision of information to calculate the amount of damages may be given.
In Germany, infringement and nullity proceedings often take place in parallel. Defense in infringement proceedings is particularly difficult in cases where a competitor actually infringes an intellectual property right. In this case, attacking the validity of the property right in suit in nullity proceedings (or in cancellation proceedings in the case of utility models) can be an effective means of protecting one’s own position.