Almost everyday someone posts something about the Unified Patent Court or a seminar is offered about the “newest” developments. In fact nobody is able to predict whether the system will “work”. It is said that in order “to be successful” the system needs to be efficient, speedy and affordable. It is also said that it will largely depend on the qualification and experience of the future UPC judges whether the UPC will be accepted by its “customers”. While this is certainly true to some extent one should keep in mind that it is up to the lawmaker to provide the rules for the proceedings balancing efficiency with justice and -at least evenly important- to provide sufficient fund [...]
by Dr. Simon Klopschinski
The Karlsruhe Higher Regional Court has found direct infringement of a use patent by manifest arrangement even though the product was not marketed together with an instruction manual or product information encouraging the buyer towards the patented use.
Use patents protect the use of an already known product in relation to a novel and inventive purpose. The scope of protection is, however, not limited to the use itself. To the contrary, it also extends to preliminary activities concerning the protected use. According to German court practice already the “manifest arrangement” or “obvious preparation” of a substance constitutes direct use. This applies for instance t [...]
by Bernward Zollner
Since the beginning of 2014 a second senate for patent infringement cases (under presiding judge Dr. Ulrike Voss) has commenced to work. The already existing senate (under presiding judge Dr. Thomas Kühnen) could share the pending cases with the new sister-senate. This resulted in a schedule for the time between the submission of the appeal reasons and the date for the oral hearing which is considerably shorter than in previous years. Whereas in previous years this time between the submission of the appeal reasons and the oral hearing was more or less one year it is now shortened to six months. This new schedule will considerably accelerate the appeals in patent infringe [...]
by Dr. Simon Klopschinski
In one of its latest orders the Karlsruhe Higher Regional Court has used the opportunity to take a glimpse into the crystal ball, in order to see what decision the Court of Justice of the European Union (CJEU) is going to render in response to the pending referral for preliminary ruling regarding the FRAND and compulsory license defense in case of standard essential patents (SEPs).
In recent years the information and telecommunication (ITC) sector has seen a wave of patent lawsuits in various jurisdictions, including Germany. Since most of the patents asserted in these proceedings form part of a standard, a core questions is whether enforcing SEPs complies with anti [...]
Many practitioners in Germany thought the doctrine of equivalence to be rather at its end following two Supreme Court (BGH)-decisions in 2011 (“Okklusionsvorrichtung” and “Dyglycidverbindung”). Now, the renowned Higher Regional Court Duesseldorf has – in my eyes, correctly – made clear that the old dog is still alive.
According to standard practice of the BGH, equivalence has three prerequisites: (i) an identical effect attributed to the alternative means; (ii) perceptibility of the alternative solution for the skilled person; and (iii) equivalence in value.
The BGH uses the following formula to describe the third prerequisite (equivalence in value) in detail: The ref [...]
The use and circulation of a product which has been put on the market by the patentee or a third party acting with the consent of the patentee (e.g. a licensee) cannot be prohibited by the patentee anymore. This concept of exhaustion is not only applicable to the territory of Germany, but to the entire territory of the EU and EEA, i.e. the common European market. This Europe wide exhaustion of patent rights is the basis for parallel imports, in particular for parallel imports of pharmaceuticals and plant protection products.
Being a defense, the burden of prove showing that the product has been put onto the market by the patentee or a licensee lies with the defendant. However, applying this [...]