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New news about the doctrine of equivalence in German case law

About half a year ago I reported on new developments in German case law concerning the doctrine of equivalence (see http://kluwerpatentblog.com/2014/10/10/news-about-the-doctrine-of-equivalence-in-german-case-law/). Just at the beginning of this month my colleague Bernward posted about further developments (see http://kluwerpatentblog.com/2015/03/02/8966/). Now again, there is a recent decision of the German Bundesgerichtshof (Federal Court of Justice) dealing with the doctrine of equivalence to report on.

The decision “Kochgefäß” (“cooking pan”, X ZR 81/13) dealt most prominently with the first question to be asked under the German doctrine of equivalence if there is no literal in [...]

News about the doctrine of equivalence in German case law

The doctrine of equivalence has seen some kind of renaissance in German case law recently. In short words, there are three questions to be asked to decide for equivalent infringement if there is no literal infringement. The first one being the question about the effect of the different solution. Do the means used to solve the problem underlying the invention objectively have the same effect? If so, would this different solution have been discovered by the man skilled in the art at the time of the priority date? The objective of this second question to be asked is whether it was kind of obvious to use the different approach instead even though it does not fall under the literal meaning of the [...]

Patent claim construction – reference to a multitude of preceding claims

Just recently, the judgement of the German Federal Court of Justice (Bun-desgerichtshof, BGH) in re X ZR 31/11 concerning a tyre removal machine has been published. This judgement is of relevance as the Federal Court of Justice had to answer a question of claim construction relevant in infringement and nullity proceedings likewise. The relevant question was whether a claim referring back to a multitude of preceding claims necessarily requires that all features of the multitude of claims re-ferred back to are fulfilled or not.

In this particular case about EP 1 177 920 there have been two independent subclaims (claims 1 and 13) and eleven subclaims dependent on claim 1 (claims 2–12). Wherea [...]

The patent claim as a technical teaching in its literal sense

In its decision “Fahrradkurbeleinheit” (“bike crank assembly”) the Higher Regional Court of Düsseldorf has lifted an injunction by the Regional Court of Düsseldorf on appeal (OLG Düsseldorf, I-2 U 78/12, 20 June 2013). Contrary to the first instance the court did not find for patent infringement. Questions of literal and equivalent infringement have been discussed and the court gave some useful guidance on the interpretation of patent claims.

One of the issues of the case was whether the claim wording “formed on” required two parts – if not being integral – to be at least firmly connected to each other. Here, the court stated that “formed on” did not necessarily mean that the one part [...]

Data as a product directly obtained by a process and questions of exhaustion

The German Federal Court of Justice (Bundesgerichtshof, BGH) addressed some interesting questions on patents protecting methods relating to data in the decision “MPEG-2-Videosignalcodierung” (“MPEG-2 video signal encoding”), judgement of 21 August 2012, X ZR 33/10. This all was round up by explanations on patent exhaustion in the context of test purchases.

In simple terms, the patent in suit covered a method for encoding video data according to the MPEG-2 standard that is used for DVDs. The case was about production of DVDs by the defendant as requested by a test purchaser of the plaintiff. For this purpose the test purchaser provided a master tape with the video data already in its encoded [...]

Of Christmas tree stands and Christmas tree trunks

As Christmas is coming closer, the “where is the Christmas stand?”-question comes up again. This little piece of engineering only used once a year is not only subject matter of several patents but has kept the Higher Regional Court of Düsseldorf busy, too (docket No. I-2 U 84/03).

Who could imagine that a Christmas stand would be characterised by not less than 18 features? And who could have guessed that having just one single power transmission device would make the difference? Most probably no one (at least not outside of the Christmas season) has ever thought about Christmas tree stands and their ability to keep abnormally contoured Christmas tree trunks in such depth as the court had to [...]

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