• BAAINBw obviously aware of invalidity
• Exclusion of C.G. Haenel is inadmissible
In an advance information letter dated March 2, C.G. Haenel was excluded by the BAAINBw from the tender procedure „Project System Assault Rifle“. An alleged infringement of a Heckler & Koch patent was cited as the reason. C.G. Haenel filed a complaint against this decision on March 4.
It must be assumed that the asserted patent is invalid.
The alleged patent that is not a patent
The patent allegedly infringed by Heckler & Koch is patent EP 2018 508 B1.
According to definition  in the patent, the task of the invention is to make the weapon more robust against possible malfunctions, in particular malfunctions due to a possible stay in water or another liquid.
Shown in the Heckler & Koch patent (Figure 1) are a centered bore (COLT M4 standard and not explicitly addressed as an invention), three decentered bores (Nr 56, 58, 60,) in the so-called buffer housing (see Figure 1) and two bores on the underside of the buffer housing (Figure 2).
Figure 1 – Excerpt from Heckler & Koch Patent (Fig. 5)
Figure 2 – Excerpt from Heckler & Koch Patent (Fig.2) blue = through hole below (52, 54)
Figure 3 – technical implementation for the MK556 similar to Colt M4.
One central through hole at the rear, none below.
However, with regard to the buffer housing, the MK 556 was delivered to the Bundeswehr with the design standard of the COLT MA4 rifle. This standard of the COLT company has existed since 1994 and is used by numerous manufacturers. According to the standard, the MK 556 has a centered bore of the buffer housing (Figure 3). There are no holes on the bottom of the buffer housing. In addition, to ensure over-the-beach capability, the MK 556 employs a completely different technical solution for draining incoming water than Heckler & Koch’s authoritative patent.
The COLT M4 was introduced to armed forces and security forces as early as 1994. Its widespread use resulted in component interchangeability between different manufacturers, which was demanded by NATO countries and has been used millions of times as an industry standard. The centered bore has been adopted by numerous manufacturers and is therefore now also referred to as the COLT standard.
The MK 556 was able to fully pass the Over the Beach test with COLT standard and the additional technical solution developed in-house. Additional bores were not required.
Invalidity of the patent is apparently known
According to concurring media reports, the BAAINBw is said to have obtained a third expert opinion addressing the patent’s invalidity. In fact, the experts probably concluded that the patent is invalid. Despite requests, the result of this expert opinion has not yet been shared with C.G. Haenel. However, this would have been necessary for a comprehensive statement on the threatened exclusion.
However, the BAAINBw has also not denied that said expert opinion on the invalidity of the patent is available. Consequently, it must be assumed that a corresponding expert opinion actually exists and that the invalidity of the Heckler & Koch patent is known to the authority.
In light of this, an exclusion of C.G. Haenel is unjustified.
Exclusion of the successful tender procedure against better knowledge
C.G. Haenel rightfully won the tender in September 2020, as the best overall package was presented. Following the positive decision of the BAAINBw, the company spent a great effort to answer follow-up questions on the manufacturing capacity in Suhl and the ownership structure of the company with regard to the investor Caracal based in the United Arab Emirates.
We are now confronted with alleged patent infringements, the invalidity of which is obviously known to the authorities, and we will apply the same diligence and commitment to clearing up the fabricated accusations.