(1) The application is to be filed in writing with the German Patent and Trade Mark Office. The facts and evidence in support of the grounds are to be indicated. Section 81 (6) and section 125 of the Patent Act apply accordingly. The application is not admissible if a non-appealable decision or a final and binding judgment has been taken on the same matter in dispute between the parties.
(2) The German Patent and Trade Mark Office serves the application on the holder of the registered design and invites the holder to comment on the application within a period of one month following service of the application. If the right holder does not contest the application within this period, the invalidity is determined or declared. If the parties declare the proceedings in the main action terminated or the applicant withdraws the application, the proceedings are terminated by decision; the decision, with the exception of the decision on the costs of the proceedings as referred to in subsection (5), is non-appealable.
(3) If the application is contested in due time, the German Patent and Trade Mark Office informs the applicant that the application has been contested and makes the orders necessary in preparation of the decision. A hearing is held upon request of one of the parties or if the German Patent and Trade Mark Office deems it to be expedient. For the purposes of taking evidence, the examination of witnesses and experts as well as the examination or hearing of parties may be ordered, visual inspection may be made or the probative value of a submitted document assessed; the provisions of Book 2 of the Code of Civil Procedure regarding such evidence apply accordingly. Section 128a of the Code of Civil Procedure applies accordingly. Minutes are to be drawn up of the hearings and taking of evidence containing the essential course of the proceedings and the relevant statements made by the parties; sections 160a, 162 and 163 of the Code of Civil Procedure apply accordingly.
(4) The decision is issued by way of an order. The substance of the decision may be delivered at the end of the hearing. The decision must be reasoned and a copy served on the parties ex officio; the copy need not be certified. Execution copies are only made upon the application of one of the parties and only in paper form. Section 47 (2) of the Patent Act applies accordingly.
(5) The decision includes a decision on the costs of the proceedings; section 62 (2) and section 84 (2) sentence 2 of the Patent Act apply accordingly. In the cases referred to in subsection (2) sentence 2 and 3, the German Patent and Trade Mark Office decides on the costs of the proceedings upon application only; the decision on the costs may be issued by separate decision. Such application may be made as follows:
1. in the case referred to in subsection (2) sentence 2, up until the expiry of one month after the decision on the determination or declaration of invalidity has become non-appealable,
2. in the case referred to in subsection (2) sentence 3, up until the expiry of one month following service of the decision to terminate the proceedings.
If no decision is taken as to costs, each of the parties bears their own costs arising.
(6) A determination as to the value in dispute is made by decision upon application. Where a decision is given on the costs, a decision on the value in dispute may be given ex officio. The decision on the value in dispute may be combined with the decision on the costs. Section 23 (3) sentence 2 and section 33 (1) of the Lawyer’s Remuneration Act (Rechtsanwaltsvergütungsgesetz) apply accordingly to the determination as to the value in dispute.