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Arithmetic value OR median value?

by Bernward Zollner

In a decision of 20 January 2015 the German Bundesgerichtshof has discussed the validity of the EP 0 964 031 and has confirmed at the end the previous judgement of the Bundespatentgericht by which the patent had been found to be invalid. The reasoning, however, was different: The claim as defended concerned polymeric material and the average size of the dispersed domains. The Bundespatentgericht had taken the position that the average size from 0,2 until less than 1 Micron referred to an arithmetic value although the patent specification did not contain any information as to the determination of the value. This value was anticipated by one of the documents under discussio [...]

Offer for development no obvious pre-use

by Miriam Büttner

In a recent decision the German Bundesgerichtshof (Federal Court of Justice, FCJ) dealt with the requirements of an obvious pre-use (judgment of 9 December 2014, docket no. X ZR 6/13 – Presszange).

In 2011 plaintiff attacked the German part of the European Patent 1 223 008 (DE 502 06 178.2), which concerns the construction of a crimping plier. Such crimping pliers are mainly used for sanitary installations to connect two pipes via a connecting piece called “fitting”. Plaintiff based its nullity suit inter alia on an obvious pre-use of the protected invention. In this regard plaintiff submitted correspondence with a manufacturer of crimping pliers to develop a crimpin [...]

Germany: The provision of information as a technical teaching? (Federal Court of Justice, “Bildstrom”)

The German Bundesgerichtshof (Federal Court of Justice, FCJ) has issued the decision “Bildstrom” (judgment of 26 February 2015, docket no. X ZR 37/13) dealing with the patentability of a system and a method for displaying an image stream.

The attacked patent EP 1474927 concerns a technical teaching for displaying an image stream, wherein at least two subset image streams are displayed simultaneously and the subset image streams are created from one original image stream. The original image stream may for example be recorded by a swallowable capsule and two subset image streams may e.g. show every second frame of the original image stream in original speed so that each frame is displayed [...]

FRAND-defense under Article 102 TFEU in the aftermath of the General Advocate’s opinion

On 26 March 2015 the Landgericht Düsseldorf rendered a judgment granting an injunction based on the finding of infringement of an SEP by sales of smartphones implementing NFC – Near Field Communication according to an ETSI standard (France Brevet vs. HTC – Landgericht Düsseldorf 4b O 140/13). Defendant’s FRAND-defense was rejected by the Court because Defendant had failed to sufficiently substantiate facts establishing Plaintiff’s dominant position within the internal market according to Article 102 TFEU.

In essence the Landgericht followed the opinion of General Advocate Melchior Wathelet (Opinion delivered on 20 November 2014 in Case C-170/13) that the ownership of an SEP as such do [...]

Doctrine of equivalence: most recent decision

The German Bundesgerichtshof has issued a decision (X ZR 41/13) called “Quetiapin” which discusses a fundamental question of the Patent Law, i.e. the definition of the “technical problem” underlying an invention. The claim of the European Patent under discussion concerned a sustained release formulation. The Patent Court had nullified the (German part of the) patent and the Bundesgerichtshof has rejected the appeal which the patent owner had filed against the first instance Patent Court’s decision. The Bundesgerichtshof took the opportunity of this case to address the definition of the technical problem. The court admonishes that not necessarily one has to look to the “object” [...]

Will the “Inescapable Trap” of Article 123 (2) and (3) EPC Catch German Parts of European Patents?

by Dr. Simon Klopschinski

Under EPO case law there is the “inescapable trap” of Article 123 (2) and (3) EPC. The German Federal Court of Justice decided in the “Winkelmesseinrichtung” case that the “inescapable trap” does not apply to German national patents. In recent time different nullity boards of the German Federal Patent Court have issued conflicting decisions on the question of whether the Federal Court of Justice’s reasoning in “Winkelmesseinrichtung” also applies to German parts of European patents.

Under EPO case law a European patent has to be revoked when its claims contain a feature which is not disclosed in the original application (Article 123 (2) EPC) and th [...]

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