German Bundestag extends competence to order the use of patents to the Ministry of Health and downstream authorities

The COVID-19-crisis does not stop at patent law either. With the revision of the Infection Protection Act in view of the COVID-19 pandemic, the German Bundestag extends the competence to order the use of patents in the interest of public welfare (Sec. 13(1) sentence 1 PatG) to the Federal Ministry of Health and downstream authorities.

Pursuant to Sec. 13(1) sentence 1 Patent Act, the German Federal Government has already been able to revoke the effect of a patent to the extent that the use is required in the interest of public welfare. 

We are not aware of any cases of an order for use, but in view of the course of the COVID-19 pandemic, these cases are likely to have come within reach for the first time since the Federal Republic of Germany came into existence. 

In particular, the use of patents relating to the production of test methods or anti-viral pharmaceuticals (full list in Sec. 5 No. 4 New Infection Protection Act) could be ordered in order to achieve a rapid and comprehensive supply of the population. 

The concrete prerequisites, scope, extent and duration of such an order for use are - in the absence of relevant case law - essentially unclear.

In any case, an order should be considered if and as long as the patentee is unable to ensure the supply of the population sufficiently, i.e. not fast enough and/or not to the required extent.

The extension of the competence to issue orders to the Federal Ministry of Health and subordinate authorities should implicitly lead to a lowering of the order threshold, also in order not to jeopardise the supply of the population with vital but patent-protected means by extensive legal examinations. 

The order is issued by means of an administrative act, which can be challenged by means of an action for annulment. The legal protection against the order should not have a suspensive effect, as otherwise the purpose of the order would be thwarted.

If the order is issued, § 13 Patent Law provides for an entitlement to an appropriate remuneration, which should rather be at the upper end of the scale. However, the patentee is not entitled to claim damages.