No Provisional Protection in Germany against Indirect Infringers

In another recent decision on indirect infringement (Drehzahlermittlung, Mitteilungen 2004, page 412), the BGH has held that the provisions for entitlement to compensation for infringement of a published application (Section 33 of the German Patents Act) are not applicable to indirect infringements.

Applicants must be ever more vigilant about ensuring that, if at all possible, claims put forward are drawn to only the essential elements of that part of a product or system that are likely to be put on the market by one supplier. Analysis of an invention does not end at its essential elements. Consideration must be given to the channels to market and who supplies which elements. Extraneous detail necessary for the invention to be finally put into operation should be omitted wherever possible, or relegated to subsidiary clauses (“when connected to . . .” etc.).