The newly established 15th Patent Senate of the Appeals Court of Düsseldorf (Presiding Judge Dr. Ulrike Voß) has referred a number of questions concerning the calculation of damages in IP cases to the European Court of Justice. This opens the floor for the ECJ to talk about damages, as far as I know for the…

Dr. Simon Klopschinski In recent time the trademark, copyright and competition law senate (1st senate) of the Federal Court of Justice (FCJ) and one of the patent senates of the Düsseldorf Higher Regional Court have issued conflicting decisions on the question of whether the presentation of a product at a trade fair in Germany constitutes…

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…

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…

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…

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…

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…

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…

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. Background According to standard practice of the…

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…