An International Guide to
Patent Case Management for Judges

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5.8.2 Violation of cease and desist order (penalty proceedings)

In practice, upon a corresponding petition, any judgment or court order containing an injunction is accompanied by a court warning in the operative part, according to which the defendant shall be subject to penalty measures in case of failure to comply with the cease and desist obligation (see Section 890(2) of the Code of Civil Procedure). Pursuant to Section 890(1), the court of first instance hearing the case, upon request of the creditor, is to sentence the debtor culpably (i.e., at least negligently)174 violating its obligation to cease and desist. For each count of the violation, the debtor, at the discretion of the court, is sentenced to a coercive fine (up to EUR 250,000)175 or to coercive detention176 (up to six months but no more than two years in total).

The scope of the injunction is limited to the actions described as infringing in the operative part. Thus, only if it is apparent from the reasons of the enforced judgment that a variation or modification (in comparison to the infringing embodiment(s)) is also to be regarded as an illegal use of the patent-in-suit does the cease and desist order extend to said variation or modification.177

The decision on penalties is issued by a court order (Section 891) and can be immediately appealed to the higher regional court within two weeks of service (Sections 793 and 567(1)(1)). The appeal has suspensive effect (Section 570(1)).