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Monopoly on Test Results? Protection of Immaterial Products as “Fruits” of a Patented Method under Sec. 9 (3) German Patent Act

Based on method claims, German Patent Law does not only grant the patentee an exclusive right to exercise the method on the German territory, but also a monopoly to offer, bring into circulation or to use in Germany a “fruit” that is the immediate result of the patented method (Sec. 9 (3) German Patent Act). This is true even if the method has been carried out, and the “fruit” has therefore been “picked”, in another – not designated – country and has then been imported into Germany.

Following a 2012 decision of the Federal Supreme Court (“MPEG-2 Videosignalcodierung”), which specifies how this rule applies to immaterial products like data, the District Court Munich now ha [...]

Tell me what you want! – Determining the subject matter of the litigation in patent infringement cases

On the defendant’s side, knowing what the patent dispute is all about is essential for your strategy. Not only do you need to adjust your non-infringement arguments to the plaintiff’s assertions concerning how the features of the claim are fulfilled in the attacked embodiment. Even more importantly, the scope of an infringement verdict is determined by the “subject matter of the litigation”. An injunction covers not only products that are explicitly mentioned in any of the parties’ briefs, but all products that have the same technical features as the ones discussed in the course of the proceedings. Deciding which technical features these are is decisive for work around solutions, a [...]

Improvement of Legal Protection in Germany

by Dr. Ulrich Pross, rospatt osten pross

Sec. 522 Civil Procedure Act (CPA) provided that courts competent to hear appeals on fact (Berufungsgerichte) can and must reject an appeal (Berufung) immediately without hearing if

– the appeal has no chance of success,
– the case is not of fundamental significance, and
– neither the development of the law nor the assurance of uniform applications of the law require the appeals court’s decision (on the matter itself).

The provision had been passed into law in 2002 in an effort to shorten the duration of forensic proceedings. To further this end, Sec. 522 also provided that orders based on it could not be brought to review before the next instan [...]

Three rules for challenging a judge

There are three compulsory rules you must observe when challenging a judge on grounds of bias:

1) Be prepared.

2) Use good reasons.

3) Have a worthy goal.

I wish to exemplify this by a hearing I had just recently:

As some of you may know, the current presiding judge of the appeal board for patent infringement cases in Duesseldorf, Dr. Kuehnen, was formerly presiding judge of one of the panels at the District Court. His promotion lead to a number of cases where he could not participate in the appeal proceedings due to his prior involvement in the same case in first instance.

However, a “prior involvement” which excludes the further participation of a judge in second instance is only prese [...]

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