5.2 Patent institutions and administrative review proceedings
Since its beginnings, Germany has followed a double-track system – the so-called bifurcation system – with the patent infringement courts, being part of the ordinary judiciary and adjudicating on the question of infringement, and separate granting authorities, with their own track of judicial review on the validity of the patent. Infringement proceedings are handled by specialized civil courts having exclusive jurisdiction in patent matters with legally-trained judges sitting on the bench.
The validity of a German patent may be challenged within nine months after its grant in an opposition procedure before a board of the German PTO. As a court of judicial review, the FPC hears appeals against the decisions of the PTO on patents. Additionally, a patent’s validity may be put into question by a nullity action before the FPC at any time. Decisions of the FPC, which are rendered by a senate consisting of three technical and two legally-qualified judges (including the presiding judge), may be appealed to the Federal Court of Justice (FCJ; “Bundesgerichtshof”) (Xth Senate) so that the separate tracks – validity and infringement – can be finally aligned by the jurisprudence of the FCJ.