by Hetti Hilge
The District Court Duesseldorf stayed a case between Huawei and ZTE concerning mobile and base stations within the LTE standard and referred five question to the CJEU (docket No. 4b O 104/12). The court wants to clarify under what circumstances an infringement court has to consider a compulsory license defense in a patent dispute concerning a standard essential patent (SEP).
In its stay order the District Court notes a discrepancy between the Orange-Book-Standard-decision of the German Federal Supreme Court (BGH) and the preliminary opinion indicated by the European Commission. According to the clear, yet strict criteria established by the BGH and the subsequent German case la [...]
by Henrik Timmann
There is a saying in Germany: Two lawyers add up to three different opinions. Well, for a long time the Federal Patent Court seemed to have been inspired by this saying when deciding on the reimbursement of lawyers’ fees in nullity actions.
Most of you will know about the bifurcated system in Germany. While only civil courts (e.g. the District Court Düsseldorf) are competent to decide on the infringement of a patent, they are not allowed to nullify a granted patent. The latter must be done in nullity proceedings (for reasons of simplification I omit the possibility of an opposition). The Federal Patent Court in Munich is the exclusive venue for such nullity ac [...]
In a recent decision (BGH X ZR 7/12) the Bundesgerichtshof had to decide whether the Appeal Court violated its general obligation to elucidate the facts relevant for the decision by not ordering the inspection of a machine by an expert. The underlying case concerned a claim for patent infringement by use of a patented process.
The BGH found that in principle the Infringement Courts can have the legal obligation to order an inspection under the Rules of Civil Procedure (ZPO) if the prerequisites for such an (ex officio) order are fulfilled. The BGH clarified that such an ex officio order under § 144 ZPO against the defendant (or even a third party) was admissible under the same prerequisites [...]
by Bernward Zollner
In a case called “Produktionsrückstandsentsorgung” the German Bundesgerichtshof has discussed a case in which the claim of the litigious patent had been amended and narrowed with respect to the scope of protection after the judgment of the appeal court had been handed down. The appeal court therefore, could not have discussed the amendment in the infringement judgment (in which an infringement was assumed). The appeal court had not admitted the further appeal (Revision). While the complaint against the non-admission of the further appeal was pending at the German Bundesgerichtshof the patent’s claim was amended and restricted by the German Bundespatentgericht. Although t [...]
by Miriam Büttner
On 27 November 2012 the German Federal Supreme Court (BGH) decided on the ethical problematical question, if neural precursor cells which origin from human stem cells are patentable or not (case no. X ZR 58/07).
Background of the decision:
Subject of this BGH decision is the validity of German patent no. 197 56 864, which Oliver Brüstle, a German scientist, applied for in 1997 and which was granted by the German Patent and Trademark Office (DPMA) in April 1999. This patent concerns the protection of neural precursor cells, a procedure to cultivate these cells and the usage of these cells in therapies for neural defects of humans and animals. According to the explanation i [...]
The number of patent infringement suits filed with the District Court of Düsseldorf remains constantly high. In addition to the two existing patent litigation chambers (chamber 4a presided by Dr. Crummenerl and chamber 4b presided by Ms Voss), the Court now installed a third 4c chamber. This new 4c chamber already started its work at the end of 2012 under the presidency of experienced judge Ms Klepsch. Ms Klepsch, at last, subsitutionally presided the 4b patent chamber and had before been in the patent litigation senate of the Düsseldorf Appellate Court. The increasing capacities of the Düsseldorf District Court will lead to a noticeable shortening of patent litigation proceedings in firs [...]