Patent Infringement by Handing Out Advertisement Brochures

In a recent decision (Kupplung für optische Geräte, GRUR 2003, 1031), the Bundesgerichtshof (BGH) found a patent infringed by the handing out of brochures advertising a product falling within the scope of protection of the patent. It found this to constitute an offer of an infringing product in accordance with section 9 of the German Patents Act.

The BGH rejected an argument that the relevant provision related only to direct sales offers which, when accepted, resulted in a contract. It held that the provision had to be interpreted from a commercial rather than a legalistic point of view. Furthermore, the BGH held that infringement could be found if, considering all relevant circumstances, it was clear that the advertised product comprised all the features of the claimed invention, even if these were not shown in the brochure. In the present case, the brochure contained a photograph of a product identical to one previously found to fall within the scope of the patent.

The BGH also found it irrelevant that the infringer claimed to be unable to produce or supply the advertised product. The relevant provision of section 9 of the Patents Act did not call for an additional requirement to be satisfied for the offer of a product falling within the scope of a patented invention to be an infringement.