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Legislative Implementation of Flexibilities - Germany

Title:Section 142 of the Patent Law as amended on 31/07/2009
Field of IP:Patents
Type of flexibility:Criminal sanctions for patent infringement
Summary table:PDF

Provisions of Law

Section 142

(1) Any person shall be punished by imprisonment not exceeding three years or by a fine, who, without the required consent of the patentee or of the owner of a supplementary protection certificate (Sections 16a, 49a),

1. makes or offers, puts on the market, uses or imports or possesses for said purposes a product which is the subject matter of the patent or of the supplementary protection certificate (Section 9, sentence 2, no. 1); or

2. uses or offers for use within the territory to which this Act applies a process which is the subject matter of the patent or of the supplementary protection certificate (Section 9, sentence 2, no.2);

The provision of sentence 1, no. 1, is also to be applied if the product has been directly made by a process which is the subject matter of the patent or of the supplementary protection certificate (Section 9, sentence 2, no. 3).

(2) When the offender is acting on a commercial scale, the penalty shall be imprisonment for up to five years or a fine.

(3) The attempt is punishable.

(4) In the cases referred to in subsection (1), the act shall only be prosecuted on demand, unless the criminal prosecution authority deems that prosecution ex officio is justified due to a particular public interest.

(5) Objects to which the criminal act relates may be confiscated.

Section 74a of the Criminal Code shall apply. Where the claims referred to in Section 140a are granted in proceedings under the provisions of the Code of Criminal Procedure (Strafprozessordnung) regarding compensation of the injured party (Sections 403 to 406c), the provisions on confiscation shall not be applied.

(6) When a penalty is imposed, the court shall, at the request of the injured party and if the latter can show a legitimate interest, order publication of the judgment. The form of publication shall be determined in the judgment.

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