Law applied:
§ Section 888 ZPO, Section 140a (3) sentence 1 PatG
Summary:
- The recall within the meaning of Sec. 140a (3), 1st sentence, alt. 1 Patent Act shall generally be enforced as an unenforceable act under Section 888 of the Code of Civil Procedure.
- in the channels of distribution, the infringing object which is not in the possession of a private end user is also in the possession of a trader who is not a trader but uses the object himself as an end user.
- A sufficient possibility of further distribution for the recall claim may result from the fact that it is conceivable under the circumstances that an object provided with the infringing product by the commercial user will be sold by the latter (as in this case a property in which infringing aluminum planks were installed as flooring).
OLG Karlsruhe, Judgment of July 18, 2023 – 6 W 30/23
Download full Judgment (machine translation)
Comment C&F:
This decision clarifies the scope in the enforcement of a recall title. If the recall cannot be executed by a third party commissioned by the plaintiff in the event of the infringer's refusal, i.e. if the recall cannot be represented, the imposition of coercive means against the infringer - in this case a penalty payment and, as a substitute, compulsory detention - is justified. Here, the infringing aluminum planks were installed at a commercially active customer of the patent infringer and must be removed from commercial circulation by the patent infringer, if necessary on the basis of an offer to bear the costs vis-à-vis this customer. The appeal to the Federal Court of Justice has been admitted.
Picture credits: MaxSafaniuk_AdobeStock.com
Our commentary on the above judgment serves the purpose of making it easily accessible. Simplifications and incompleteness are due to this purpose. For a complete understanding, please refer to the original German version of the publication of the judgment.