The Judicial Geography of Patent Litigation in Germany: Implications for the Institutionalization of the European Unified Patent Court

Abstract

The Unified Patent Court (UPC) will be the pillar of a unified European patent enforcement system. Crucial to its success will be the harmonization of geographical variation in national jurisdictions. Germany offers a unique opportunity to explore such harmonization, as plaintiffs can choose between twelve regional courts to file a patent suit, resulting in different patent court practices within the same jurisdiction. Adopting a legal geography perspective, we examine the appellate process as a mechanism that reconciles regional variation in court practices. Based on more than 100 decisions from 34 contentious litigations that went through all instances up to the Federal Court of Justice between 2005 and 2019, we find that decision reversals, case citations and guiding principles are important tools to improve error correction and judicial consistency within an IP system. We see these instruments as crucial for national harmonization also in the upcoming European framework.