Patent Infringement on Trade Fairs

Anything for sale here?

PatLit has recently reported a decision of the German Supreme Court (BGH) in relation to a risk of first offence by exhibiting products on a trade fair in an unfair competition case here.

The court found that the mere exhibition of products does not necessarily mean that the products are offered for sale. Further evidence is needed to support this finding.

The question if and how this can be transferred to patent infringement remained open.

The OLG Düsseldorf has now decided that exhibiting infringing products on a specialist trade fair is "offering for sale" in the sense of § 9 S. 2 Nr. 1, 2. Alt. of the German Patent Act (PatG) unless the fair qualifies exceptionally as a pure "performance show" (Leistungsschau).

This ruling is contrary to an earlier ruling by the  Mannheim District Court (29.10.2010, 7 O 214/10, see here) which judged that the mere fact of exhibiting a product infringing a patent was not sufficient to prove the alleged infringer's intention to sell the product in Germany with a degree of certainty sufficient to grant a preliminary injunction.

The question had been answered for trademark infringements by exhibiting on trade fairs in the decision Pralinenform II and in relation to a risk of first offence in an unfair competition case here.

For more background information see here.