Philipp Mönkemeyer is a Patent Attorney and European Patent, Trademark and Design Attorney. He is in charge of patent registrations at Fette Compacting and helps to prosecute counterfeiters.
How difficult is it to win cases with the aid of patents?
As a general rule, patent infringements in the area of engineering are easy enough to pursue as patents in this area often entail so-called device patents. The patent infringement can therefore be proven in the form of a direct comparison with the products available on the market.
What steps do counterfeiters face?
In Germany, patent infringers can count on a civil suit with legal action. A preliminary injunction is also possible in cases of special urgency. This can be levied at very short notice and entirely without the other party being heard.
What happens after a judgement is issued?
The patent infringer is usually subject to a range of legally enforceable obligations. Under threat of penalty, he is prohibited from further manufacturing, offering, distributing or using the item whose patent has been infringed. Payment of compensation to the patent holder is also possible. But the patent infringer can also be obliged to recall and destroy the products infringing the patent. And in Germany, he is also obliged to bear the legal expenses incurred by both parties.
Can only manufacturers of counterfeit products be prosecuted or users, too?
As a general rule, the cease-and-desist declaration can also be asserted against the customers and users of the item whose patent has been infringed. If certain machines can no longer be used as a result, this can obviously have significant impacts on production processes and customer relationships.
What responsibility is borne by users?
In Germany, users are obliged to find out about the patent situation. There arises a liability for damages when a patent is infringed – regardless of whether the user was actually aware of the infringed patent or not.
Just how promising is the battle against counterfeiters in Germany and throughout the world?
Patent infringements can be pursued easily in Germany. The courts work comparably fast and display a high level of quality. But patent infringements can also generally be pursued well in the numerous foreign markets, even if proceedings are significantly longer and more expensive in some cases. This usually means a considerable increase in the risk of costs being borne by patent infringers. In my experience, the enforceability of property rights has also significantly improved in China in recent years.
How do counterfeiters attempt to conceal evidence of patent infringements?
Some companies try to avoid a patent infringement by modifying the item described in the patent. But the scope of protection represented by a patent is usually more extensive. For example, in a Fette Compacting patent for turrets, a district court also ruled that a modified turret design was a patent infringement.
Thank you, Mr. Mönkemeyer.