Partial win for Heckler & Koch in assault rifle procurement in Germany

The German Armed Forces has selected previous supplier Heckler & Koch for the procurement of 120,000 new assault rifles. The German Federal Procurement Body (VK1 24/23) rejected a request for review by competitor C.G. Haenel, following recent patent-related allegations which led to the supplier's exclusion.

15 June 2021 by Christina Schulze

The German Armed Forces has once again selected long-time supplier Heckler & Koch to supply 120,000 assault rifles, following patent-related allegations against competitor, C.G. Haenel ©Photoshooter/ADOBE STOCK

The German Federal Procurement Body (Vergabekammer des Bundes), headed by Hans-Werner Behrens, has decided that competitor C.G. Haenel was misinformed. The body has decided that, upon recalculation, C.G Haenel’s bid to supply 120,000 assault rifles to the German army was ultimately less economical than Heckler & Koch’s.

The decision comes after, following a break from tradition, the army awarded the contract to C.G. Haenel in late 2020. For 60 years, the German Armed Forces’ assault rifle supplier was Heckler & Koch. Haenel is a traditional German company, known in the market for its hunting rifles.

Surprisingly, patent-related allegations against Haenel played a marginal role in the hearing. Instead, the body looked mainly at which supplier put forward the most economical bid. However, the patent dispute could still gain importance over the coming year.

Heckler & Koch has inspection

Now, Haenel has until 24 July 2021 to lodge an appeal against the decision with Düsseldorf Higher Regional Court. Due to the order volume of 120,000 assault rifles, observers assume that Haenel will continue to fight. According to information from dpa, Heckler & Koch’s bid was €179 million.

Initially, the German Armed Forces procurement authority (Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support, or the BAAINBw) had selected Haenel as the manufacturer. However, following patent law allegations becoming public, the authority put the procedure on hold. It also then obtained an expert opinion from Stuttgart-based patent attorney, Hans Christian Seifert.

Afterwards, the BAAINBw excluded Haenel from the award procedure. To counter the allegations, Haenel submitted an expert opinion by patent lawyer Christian Donle from Preu Bohlig in Berlin. At the same time, inspection proceedings are underway to collect evidence for infringement proceedings.

According to JUVE Patent’s information, an inspection has taken place at Haenel. However, the relevant authority has not yet decided on the application for an inspection at the German Armed Forces. Haenel doubts the validity of the competitor’s patent.

Patent joker ineffective

Düsseldorf Higher Regional Court case law, which requires the awarding authorities to examine whether possible infringements of industrial property rights restrict the ability to supply and thus bidder suitability, forms the background to these expert opinions. Accordingly, the awarding authority does not necessarily have to wait for the outcome of a patent dispute.

The BAAINBw dismissed as irrelevant whether it acted correctly in this case, since the bid was eliminated anyway because it was less cost-effective. Observers criticised that the Federal Procurement Body did not decide on this point.

Düsseldorf Regional Court will hear Heckler & Koch’s infringement suit against Haenel on 12 October. In parallel, Heckler & Koch has filed a negative declaratory judgment action against rifle magazine manufacturer Magpul, which accuses the arms manufacturer of infringing its patents.

Christian Donle, Heckler & Koch

Christian Donle

The BAAINBw obtained an expert opinion on the patent case from patent attorney Hans Christian Seifert.

Expert instruction

Procurement lawyers around Roland Stein represent C.G. Haenel. However, for the patent proceedings, the lawyers recommended cooperation with Preu Bohlig & Partner partner, Christian Donle. Haenel works with local patent attorney Christoph Engel from law firm Patentengel.

A procurement law team from CBH, led by Stefan Hertwig, had represented Heckler & Koch since the start of the proceedings. However, for the filing of the patent infringement suit, Heckler & Koch did not rely on the firm’s patent experts.

Instead, it retained IP law firm Hoyng ROKH Monegier and patent attorney firm Samson & Partner. Partner Friedrich Samson-Himmelstjerna filed the patent application for Heckler & Koch in 2007.

Klaus Haft, Heckler & Koch

Klaus Haft

For Heckler & Koch
Hoyng ROKH Monegier (Düsseldorf): Klaus Haft (lead, partner), Mirko Weinert; associates: Max von Leitner, Larissa Otten
Samson & Partner (Munich): Friedrich Samson-Himmelstjerna, Ralf Haft (both patent attorneys)
CBH Rechtsanwälte (Cologne): Stefan Hertwig, Andreas Haupt (both procurement law), Andrea Heuser (corporate), Martin Quodbach (patent law); associates: Lara Itschert, Kristin Hacky (both procurement law)

For C.G. Haenel
Blomstein (Berlin): Roland Stein (procurement law); associates: Florian Wolf, Moritz Schuchert
Preu Bohlig & Partner (Berlin): Christian Donle (patent law)
Patentengel (Suhl): Christoph Engel (patent attorney)

For Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw)
KDU Krist Deller & Partner (Koblenz): Matthias Krist (public procurement law)
KSM Patent (Stuttgart): Hans Christian Seifert (patent attorney)
In-house (Koblenz): Matthias Mantey