Heckler & Koch assault rifle patent upheld as Europe scales up defence

The dispute between Heckler & Koch and its competitor C.G. Haenel began years ago in more peaceful times, when the German Armed Forces primarily served as a deterrent. Amid current global political developments, the German government and its European partners are now considering extensive rearmament programmes.

Now, the Federal Court of Justice has handed down a judgment that will likely conclude the dispute over procurement of new assault rifles for the German Armed Forces. According to German media, the 10th Civil Senate under presiding judge Klaus Bacher has fully upheld Heckler & Koch’s EP 20 18 508 (case ID: X ZR 30/23). The patent protects a rifle-locking system.

120,000 new assault rifles

The nullity action stems from a German government tender for the procurement of 120,000 new assault rifles. For 60 years, Heckler & Koch had been the sole supplier. The German authorities then awarded C.G. Haenel the contract to deliver its Haenel CR 223 model as part of a Europe-wide tender.

However, following a complaint by Heckler & Koch regarding possible patent infringement, authorities later excluded C.G. Haenel from the contract. Heckler & Koch sued its competitor for infringement of EP 508 in 2020.

Although C.G. Haenel contested the exclusion in court, it did not regain its position. A Higher Regional Court Düsseldorf ruling in summer 2022 proved decisive, confirming Haenel’s exclusion due to alleged patent infringement. This allowed German authorities to proceed with the rifle procurement.

Haenel then went on the offensive, filing for revocation of EP 509. But the Federal Patent Court upheld the patent in September 2022 (case ID: 7 Ni 29/20 (EP)). Haenel appealed against this decision – now unsuccessfully.

Meanwhile, the Higher Regional Court Düsseldorf confirmed that C.G. Haenel has infringed EP 509. As a result, C.G. Haenel cannot sell its new assault rifle in Germany. The ruling to uphold the patent has lent further weight to this judgment.

Final chance for Haenel

The infringement proceedings remain ongoing. C.G. Haenel has consistently denied patent infringement and has filed an appeal to the Federal Court of Justice against the denial of leave to appeal regarding the injunction from the Düsseldorf court.

If the court accepts the appeal, it would review the infringement judgment. Even if C.G. Haenel succeeds in overturning the infringement ruling, this would hardly affect the original order for 120,000 assault rifles. For C.G. Haenel, the issue is whether it can sell its assault rifle in its original version or must continue with a modified design.

Stable client relationships

Throughout the four-year dispute, all law firms have maintained their original client relationships.

Munich-based patent attorney firm Samson & Partner has a long-standing relationship with Heckler & Koch and filed the patent application in 2007. Name partner Friedrich von Samson-Himmelstjerna is a key contact. He lead the team Federal Court of Justice proceedings  alongside young partner Lucas Fischer and Hoyng ROKH Monegier partner Klaus Haft.

Heckler & Koch also relied on Haft for the infringement proceedings. Hoyng ROKH Monegier and Samson & Partner work closely on many cases, particularly in mobile communications.

Preu Bohlig & Partner‘s Christian Donle represented Haenel in both the patent infringement dispute and the Federal Court of Justice proceedings. The company also regularly works with patent attorney Christoph Engel of patent firm Patentschutzengel.

Additionally, Heckler & Koch engaged Christian Rohnke while C.G. Haenel worked with Axel Rinkler. Both lawyers are specialised in cases at the Federal Court of Justice. They usually leasd the cases at the court.