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To suspend or not to suspend – Bundesgerichtshof on bifurcation

by Hetti Hilge

In two recent and surprising decisions the Bundesgerichtshof (German Federal Court of Justice) clarified the effects of a first instance decision nullifying the patent in suit on the enforcement of a parallel infringement finding (including an injunction) and, upon second review, remedied what it considers an unintended oversight by the legislator (“Planwidrige Regelungslücke”) in the specific circumstances of patent litigation and bifurcation. Effectively “overruling” its own previous decision in the very same case (Microsoft vs Motorola), the court now ordered the temporary suspension of the enforcement of an appeal court judgment finding for infringement, against t [...]

Is the Federal Patent Court obliged to appoint a technical expert?

by Bernward Zollner

In a recent decision of the Federal Supreme Court dated 26 August 2014 (docket-No. X ZB 19/12) a further appeal of an applicant pursuing his patent application was rejected. Already the German Patent and Trademark Office had rejected the patent application. The Appeal of the applicant against this decision had been rejected by the Federal Patent Court. Against this decision the applicant submitted a further appeal to the Federal Supreme Court arguing that the Federal Patent Court should have appointed a technical expert. The Federal Supreme Court has rejected this further appeal.

In the reasoning it is pointed out that the Technical Senate of the Federal Patent Court does [...]

Chairman Between the Chairs -The Decision of the Enlarged Board of Appeal R0012/19-

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 [...]

Use Patents under German Law – Manifest Arrangement

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 [...]

Two senates at the Appeal Court Duesseldorf now competent for patent infringement cases

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 [...]

German Court is Soothsaying What the Future will Bring for FRAND and Compulsory License Defenses

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 [...]

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