5.10 Border measures
Border seizures are generally possible in Germany. However, seizures at the German land borders (under Section 142a of the Patent Act) normally do not take place because Customs, in general, does not control borders between member states of the EU and those of the Schengen Area (which includes Switzerland in particular), and Germany borders solely with member states of the Schengen area. Border seizures are therefore primarily relevant with regard to imports and exports via German airports and harbors from or to countries not part of the Schengen area and at the EU’s external borders. The basis for such seizures is Regulation (EU) 608/2013.197 According to Article 1(1), within the scope of the Regulation are, in particular, the following especially relevant seizure situations: the release of goods for free circulation, the transfer of goods into or out of the customs territory of the EU, and the transfer of goods into a free zone or free warehouse.
Seizure proceedings are initiated by filing an application with the competent customs department of the member state. The competent agency for applications in Germany is the Federal Finance Directorate Southeast (“Bundesfinanzdirektion Südost”), based in Munich. The application is to be made either on a case-by-case basis or for a maximum of one year during which time the customs authorities are to take action (Article 11(1)–(2)) and needs to provide information regarding the applicant and the patent that is to be enforced according to Article 11(3). The application must also substantiate how to identify the infringing devices and why there is a plausible case of infringement; otherwise, seizures are not practically possible. This is typically a limiting factor, because the agency dealing with the applications is not equipped to determine issues of patent infringement (let alone validity). Thus, some sort of prima facie plausibility is needed to allow this determination and also enable the identification of the pertinent devices. This is facilitated if standard essential devices are at issue (e.g., “mp3 players”), and a number of court decisions corroborating the showing of infringement of the patent named in the application are already available.
If the application is successful, goods will be seized in each case if there is an indication of an infringement of the patent. After potentially infringing devices have been seized, the proprietor, as well as the holder of the goods, will be informed (Article 17(3)–(4)). The patent holder is given the possibility to inspect the seized devices (Article 19). If the patent holder, after inspection and examination, has confirmed the infringement, and the patent holder and goods holder agree within 10 working days, the goods will be destroyed (Article 23(1)). If the proprietor does not provide both their agreement with the destruction and their confirmation of infringement in due time, the goods will be released (Article 23(1)). If the holder of the goods opposes the destruction (which is the practically relevant case), the proprietor needs to file an infringement proceeding (Article 23(3)) within 10 working days. An action for preliminary relief is also suitable in this regard. Otherwise, the goods will be released (Article 23(4)). The holder of the goods may request early release according to Article 24.