German method patents can be infringed if the protected method is used domestically or, under certain circumstances, if it is offered for use in Germany. The same applies to the German part of a European patent. As long as the entire method is used or offered for use domestically, the case is clear.
However, the Court of Appeals of Düsseldorf now needed to decide a case where a patented method was only partly executed in Germany. The case concerned a method for operating a prepaid telephone card system. According to the court, the plaintiff utilized the method but operated the corresponding PABX system in Ireland. Therefore, the majority of steps comprised by the method were also executed in Ireland. However, the prepaid telephone cards were distributed and used in Germany. The claimed method included the step of “distribution … [of the cards] for sale to the public”.
The Court of Appeals, which in view of the unsolved legal situation granted a temporary stay of execution, earlier (contribution dated January 12, 2010) eventually found the domestic patent to be infringed (decision of December 12, 2009, I-2 U 51/08 – Prepaid-Telefonkarte). It could be sufficient that only one step of the method is executed in Germany. However, according to the court, an economic-normative point of view would then be needed as a suitable corrective, which for establishing accountability requires the behaviour in question to be specifically aimed at having an effect on the domestic market. Concerning this aspect, the Court of Appeals pointed to the fact that coin-operated and card-operated telephones are becoming obsolete in Germany.
The jury on this legal issue is presumably still out, as the court allowed revision to the Federal Supreme Court (Bundesgerichtshof, BGH). What is remarkable in this case, is that the proprietor was fortunate in that the distribution was included in the claim.