Context:
- German patent infringement proceedings are doubly bifurcated. On the one hand, the courts hearing infringement cases do not make a final decision on validity, but merely assess the likelihood of invalidation when deciding on a request to stay theinfringement proceedings. That is usually referred to as bifurcation in the context of German patent litigation. On the other hand, there is also bifurcation between the merits rulings and the proceedings in which damages are awarded. German law would allow patentees to seek a specific damages amount from the beginning, and in some cases such as IPCom v. Apple (Mannheim Regional Court), that has been attempted. But it is far more common to obtain a merits judgment first, based on which the infringer has to provide an accounting (lists of relevant sales) enabling the patentee to calculate the damages it may then seek in a subsequent proceeding.
- When parties fail to comply with German court rulings, the normal consequence is a contempt fine. Such fines are then increased in the event of sustained disobedience. However, imprisonment is also a possibility in two scenarios:
- Surrogate imprisonment is ordered if a contempt fine cannot be collected due to a party’s insolvency or practical enforcement issues.
- Coercive imprisonment can be ordered if the court concludes that even an increase of contempt fines would not be likely to achieve the desired effect.
What’s new: In an unprecedented order dated December 10, 2025 that came down without a hearing, the 7th Civil Chamber of the Landgericht München I (Munich I Regional Court) ordered the imprisonment (for one month) of the general manager of a Japanese glass manufacturer’s European subsidiary in an effort to enforce the damages accounting part of an April 17, 2025 patent infringement judgment. A redacted version of the order and other details can be found further below. The defendant raised antitrust concerns over the disclosures sought by the plaintiff.
Direct impact:
- The order says that this measure is expected to lead the non-compliant executive to ensure his company’s compliance with the order. The same party already appealed a prior contempt ruling and will now presumably comply.
- The defendant will presumably file an immediate objection, and the order will be not be enforced until the appeals court has decided. But the specter of imprisonment may lead the defendant to comply.
- The order notes that the defendant declares iself in compliance with the injunctive part of the ruling.
Wider ramifications:
- This tough measure will definitely serve as a major deterrent from non-compliance with the Munich I Regional Court’s patent rulings. It may also be food for thought for those seeking to undermine the same court’s jurisdiction over patent cases through foreign antisuit injunctions or other coercive measures. The order notes that contempt fines tend to be insufficient to ensure the compliance of large multinational companies with court orders.
- The Unified Patent Court (UPC) cannot directly order anyone’s imprisonment. It can only impose fines.
Here’s an unofficial machine translation of the parts of the April 17, 2025 judgment that the defendant has not complied with:
2. To provide the plaintiff with information regarding the extent to which it has committed the acts described in point I.1 since June 21, 2017, specifying:
a. the names and addresses of the manufacturers, suppliers, and other previous owners;
b. the names and addresses of the commercial customers and the sales outlets for which the products were intended;
c. the quantity of products manufactured, delivered, received, or ordered, as well as the prices paid for the products in question;
whereby copies of the corresponding purchase documents (namely invoices, alternatively delivery notes, and as a last resort, customs documents) must be submitted to substantiate the information, whereby details requiring confidentiality outside the data subject to disclosure may be redacted;3. To provide the plaintiff with an accounting of the extent to which it has committed the acts described in point I.1 since July 21, 2017, specifying:
a. of the individual deliveries, broken down by delivery quantities, times and prices, including type designations, as well as the names and addresses of the customers,
b. of the individual offers, broken down by offer quantities, times and prices, including type designations, as well as the names and addresses of the commercial offer recipients,
c. of the advertising carried out, broken down by advertising media, their circulation figures, distribution period and distribution area,
d. of the production costs broken down by individual cost factors and the profit achieved;
whereby
the statement with the data from the information (I.2.) and accounting (I.3.) must also be submitted in an electronic form that can be evaluated by computer system; and
it remains the defendant’s right to disclose the names and addresses of the non-commercial customers and offer recipients, instead of to the plaintiff, to a sworn auditor to be designated by the plaintiff and bound to secrecy towards the plaintiff, provided that the defendant bears the costs and authorizes and obligates the auditor to inform the plaintiff, upon specific request, whether a particular customer or offer recipient is included in the list;
The dispute is now particularly about items 2.b, 2.c, 3.a, and 3.d.
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Panel
Presiding Judge Dr. Oliver Schoen (“Schön” in German), Judge Katalin Tözsér and Judge Dr. Florian Schweyer.