Verfassungsrechtliche Anforderungen an den Patentschutz

The article discusses constitutional requirements concerning patent protection in simple legal regulation. Reviewing the constitutionality of § 139 PatG, it concentrates on current alarming developments in the market of information and communication technology. Due to high patent density in the concerned complex field of technology there is a high economic risk for patent users to affect third party rights without sufficient licensing contracts. This applies all the more since the injunctive relief in § 139 PatG is extensively regulated, its legal enforcement is rather simple. Especially standard-setting patents are often misused to acquire competitive advantages, forcing patent users into unfavourable contracts, thus resulting even in blocking the concerned market. Bearing in mind that for a great part, patent rights are enforced by patent exploitation companies and not by the inventors themselves, this situation is all the more questionable. Thus, the current unrestricted legislation of patent protection meets with serious constitutional objections, particularly with regard to the welfare state principle of Art. 14 para. 2 GG, the fundamental right of freedom of occupation and enterprise, Art. 12 GG aa, and the principle of proportionality. On the other hand, patent rights are protected by the fundamental right to property, Art. 14 para. 1 GG. These two poles must reach a suitable compromise, creating practical compliance. In the interpretation and application of § 139 PatG, the jurisprudence must ensure that these constitutional requirements are met. Yet, this can only be a transitional solution. It is the legislative power that has the prime responsibility to create a constitutional solution by amending the concerning legislation.
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