C.G. Haenel is still unable to sell its new assault rifle in Germany, after the Higher Regional Court of Düsseldorf confirmed that it infringes a patent held by competitor Heckler & Koch. This means the latter company has once again been successful in the wide-ranging dispute over a new assault rifle for the German army.
5 January 2023 by Mathieu Klos
In what is currently the final decision between the two parties in a dispute over rifles, the Higher Regional Court of Düsseldorf has confirmed that Haenel’s “Haenel CR 223” assault rifle infringes Heckler & Koch’s EP 20 18 508 B1. In its ruling at the end of December, the second-instance court reaffirmed the Regional Court’s infringement ruling from November 2021 (case ID: I-15 U 59/21).
Haenel had originally appealed against the Regional Court of Düsseldorf’s ruling. However, the 15th Civil Senate judges saw no reason to change the first-instance ruling. As the Düsseldorf Higher Regional Court has announced, Haenel may not manufacture and sell its assault rifle in Germany.
Furthermore, the Higher Regional Court judges did not allow Haenel to appeal to the German Federal Court of Justice, although Haenel can apply directly to the court for permission to appeal. This is possible under German law, though rarely successful.
For the time being, the ruling is the final act in a major dispute between the two arms manufacturers over the supply of 120,000 assault rifles for the German army (in German: the Bundeswehr). The German authorities had initially awarded Haenel the contract for the delivery as part of a Europe-wide tender.
However, Haenel was then excluded from the contract following a complaint by Heckler & Koch on the grounds of possible patent infringement. In 2020, Heckler & Koch had sued the competitor for infringement of EP 508 B1.
Although Haenel defended itself in court against the exclusion, it has not yet returned to its winning streak. The decisive factor in the dispute is likely to have been a Higher Regional Court Düsseldorf ruling in the award procedure in summer 2022. The court confirmed Haenel’s exclusion from the award because of the alleged patent infringement. This allowed the German authorities to proceed with the procurement of the rifles.
There now remains one possibility for Haenel. The company sued for the destruction of EP 508 B1, which protects a rifle-locking system. The Federal Patent Court upheld the patent in September 2022 (case ID: 7 Ni 29/20 (EP)). However, Haenel can still appeal against this.
According to JUVE Patent information, the court has not yet provided written reasons for the ruling. As such, the company still has time to decide whether to take this step.
In the dispute, which has now lasted more than three years, all law firms have represented their clients from the very beginning. Partner Friedrich von Samson-Himmelstjerna, who has a long relationship with the company, filed the patent application for Heckler & Koch in 2007.
In infringement proceedings, the company relies on Munich-based partner Klaus Haft from Hoyng ROKH Monegier. Both patent firms have a close relationship and work together on many cases, especially in mobile communications.
Preu Bohlig & Partner ‘s Christian Donle represents Haenel in the patent infringement dispute following a referral. In addition, the company regularly works with patent attorney Christoph Engel from law firm Patentschutzengel.
For Heckler & Koch
Hoyng ROKH Monegier (Düsseldorf): Klaus Haft (lead), Mirko Weinert (both partners); associates: Max Schellhorn
Samson & Partner (Munich): Friedrich von Samson-Himmelstjerna, Ralf Haft (both partners); associate: Lucas Fischer (all patent attorneys)
For C.G. Haenel
Preu Bohlig & Partner (Berlin): Christian Donle (partner)
Patentschutzengel (Suhl): Christoph Engel (patent attorney)
Higher Regional Court Düsseldorf, 15th civil senate
Ulrike Voß (presiding judge)