5.1.1 Evolution of the patent system
The German Patent Act (“Patentgesetz”) finds its roots in the Reichspatentgesetz of May 25, 1877, which has since undergone numerous revisions and consolidations. The current version is based on the 1981 revision, with the latest significant modification having entered into force in August 2021. In this modification, the right to a permanent injunction, above all, was adapted so as to clarify that, under exceptional circumstances, the claim for injunctive relief may be precluded by the objection of disproportionality.
Since its beginnings, patents have been granted throughout all federal states in Germany by a centralized federal body – first the Imperial Patent Office in Berlin, now the German Patent and Trademark Office (PTO) having its seat in Munich. A major change to the organizational structure of the granting authority was triggered by a landmark decision of the Federal Administrative Court (“Bundesverwaltungsgericht”) in 1959,1 which found that it was not in line with the fundamental right to judicial review that decisions of the Patent Office could only be appealed to an internal appellate body of the Office. It further held that this appellate body could not be regarded as a court since its decisions were rendered by civil servants not being furnished with the independence and impartiality of a judge. This led to the establishment of the Federal Patent Court (FPC; “Bundespatentgericht”)2 in Munich in 1961 after necessary changes to the German Constitution had been made.3