Federal Court of Justice on liability of foreign suppliers for patent infringements by their consignees in Germany
In its judgment “Abdichtsystem” (of 16/05/2017, case No.: X ZR 120/15), the Federal Court of Justice established principles about how to decide whether a shipment of goods from abroad to a consignee residing abroad, who imports the goods to Germany later on, may cause the supplier’s liability for infringement of a patent in Germany.
One of these principles is that the mere exterritorial shipment as such does, of course, not ensue such liability. The same shall apply if the supplier knows that its consignee generally maintains business relationships to Germany.
However, as soon as there are other circumstances indicating that a further shipment to Germany is a concrete option, the supplier may be obliged to request a plausible explanation about the purpose of its order. Omission of such a request may lead to the supplier’s liability as an infringer, which may involve an obligation to disclose all shipments to the respective supplier (the case at hand was remanded back to the lower instance for further fact finding).