Remarks on the Decision ‘Duty to Digitalize for Rendering Information and Accounts’

If a patent owner wants to claim damages from an infringer, he bears the burden of proof for the facts substantiating the amount to be claimed. Further, he has a legitimate interest in learning about the delivery chain of infringing products both up- and down-stream from any particular infringer. However, unlike the US, the German legal system does not foresee any court-supervised fact-finding procedure such as discovery. Instead, the patent owner has a claim for information on the delivery chain and rendering of accounts regarding the acts of patent infringement. This claim is usually asserted in a first round of infringement litigation, together with a request for an injunction.

The District Court in Munich (“Landgericht München I”) now decided that the data owed shall be provided to the patentee also in a computer-readable format, even if the infringer has these data only on paper. The infringer therefore shall make them computer-readable. Finnegan partner Moritz Meckel summarizes the court decision dated 12 November 2021, file ref. 21 O 10885/16.

Read “Remarks on the Decision ‘Duty to Digitalize for Rendering Information and Accounts’”, GRUR-Prax 2022, 385.