Decision of the Federal Supreme Court (Bundesgerichtshof) 11 July 2017 – Case No. X ZB 2/17
  • Patent Act, Secs. 24, 85(1)
Decision • Patent Law Germany
  1. a)

    Whether the licence seeker has within a reasonable period of time attempted unsuccessfully to obtain permission from the patent proprietor to use the invention on reasonable commercial terms and conditions must be evaluated based on the circumstances of the individual case.

  2. b)

    A public interest in the grant of a compulsory licence for a pharmaceutical substance can exist even when only a relatively small group of patients is affected. This is the case in particular when this group would be exposed to an especially high risk if the medicament in question were no longer available.

  3. c)

    Hesitant behaviour on the part of the licence seeker must be taken into consideration in the balancing of interests required by Sec. 85(1) of the Patent Act. Such behaviour does not in and of itself argue against the presence of a public interest.

  4. d)

    The issue of an interim injunction under Sec. 85(1) of the Patent Act is not additionally subject to the requirements laid down in Sec. 935 or Sec. 940 of the Code of Civil Procedure.



Compulsory licence Medicine Pharmaceutical sector AIDS Public interest Balance of interests 

Copyright information

© Max Planck Institute for Innovation and Competition, Munich 2017

Authors and Affiliations

  • Patent Act, Secs. 24, 85(1)

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