The armaments companies Heckler & Koch and CG Haenel as opponents in court proceedings – again, this time the Bundeswehr Procurement Office is also involved.
A short greeting had to suffice, the bosses of the two gunsmiths had nothing more to say to each other.
Surrounded by their lawyers, the managers stood apart from each other in Düsseldorf’s higher regional court on Wednesday as they awaited the start of hearings in a legal dispute: Heckler & Koch’s Jens Bodo Koch on one side and CG Haenel’s Olaf Sauer on the other . Their chief financial officers had come along. The top floor of the two armaments companies was fully represented – this made clear the importance of the negotiations for both companies.
It’s about 120,000 assault rifles that the federal government put out to tender in 2017. In 2020, the small arms company Haenel from Suhl in Thuringia was surprisingly awarded the contract. The big competitor Heckler & Koch was duped – for the first time in six decades he should no longer deliver assault rifles to the German army. However, the Bundeswehr Procurement Office later had doubts: could the Haenel model CR223 rifle infringe patent rights? The office backtracked, excluded Haenel from the award procedure in March 2021 and decided in favor of H&K.
Haenel did not give up
The small competitor defended himself before the Federal Cartel Office, but failed. Haenel did not give up and appealed – on Wednesday there was a hearing before the Düsseldorf Higher Regional Court. The dispute was heated and a preliminary decision by the chamber was not recognizable. The verdict is to be announced on April 6th.
Haenel’s lawsuit was directed against the federal government, i.e. the Bundeswehr procurement office. H&K was there as a “participant”. Was it legal to throw Haenel out of the race back then? Absolutely, emphasized the representatives of the procurement office. If you were to receive a product that had patent defects, it would be “quite simply a disaster,” said one of the government attorneys.
Pinpricks were used several times to make the opponent look bad. A Heckler & Koch lawyer said, looking at the competitor’s representatives: “A prudent businessman who brings a product onto the market must make sure that it does not infringe any patents.” Another lawyer from H&K later complained that Haenel had “played uncleanly”.
Patent for tiny openings
The patent is about “fluid passage openings” – tiny openings in the rifle that allow water to drain off and enable rapid firing, for example when soldiers have waded through rivers. “Over the Beach” is the name of the industry. Haenel considers the patent invalid, also because such a design has long been standard in the defense industry. H&K sees it differently: The patent does not just consist of drillings, but “it has many facets”, according to one of the company’s lawyers.
In a separate procedure, the Düsseldorf district court came to the conclusion in November 2021 that Haenel had infringed the H&K patent. However, the verdict is not yet final, the Thuringians appealed. Haenel argues that there could have been no infringement at all because the patent was void. The company has filed a corresponding lawsuit with the Federal Patent Court – it is still unclear when this will be decided.
Was the procurement office allowed to exclude Haenel or not? The presiding judge made it clear that she does not attach great importance to an award error on which the lower court based its decision against Haenel. A possible patent infringement through the use of a magazine from the US manufacturer Magpul also plays no role in the impending verdict, as the judge’s statements made clear.
The legal battle focused on the alleged “Over the Beach” patent infringement. “That’s where the music plays,” said the judge, referring to this aspect. She made it clear that this was not a patent court and that she had to rely on expert opinions when assessing the patent facts. This could be understood as a sign that she considers the exclusion to be legal – but it wasn’t a crystal-clear signpost.
Source: Stern
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