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The decision „Schleifprodukt“ of the German Federal Court of Justice – a step towards harmonisation with the EPO practice?

The judgement “Schleifprodukt” rendered by the German Federal Court of Justice on 25 November 2014 could be seen as a step towards harmonisation with the EPO because the court carried out the test for the admissibility of claim amendments by assessing whether the feature combination of the amended claim in its entirety represents a technical teaching which is identifiable from the original application as being suitable for achieving the effects of the invention.

EPO: T773/10, European Patent Office (EPO), Board of Appeal, T773/10, 24 October 2014

The Board of Appeal rejected an attempt to apply the fiction of novelty of “medical” substances and compositions of article 54(5) EPC to a dialysis membrane. Contrary to T2003/08 the claimed dialysis membrane did not contain any further substance that might constitute an active ingredient. With reference to arguments in T2003/08, the board noted that it was not decisive that the dialysis membrane could perform the same function as a drug. The board also did not consider the membrane a single-use product consumed during use, because the reason for not re-using merely was fouling, which could theoretically be removed.

A full summary of this case has been published on Kluwer IP Law.

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EPO: T0025/13, European Patent Office (EPO), Board of Appeal, T0025/13, 20 November 2014

The Board emphasized that there was a relation between who was to be considered to be the skilled person for judging inventive step on one hand and the choice of the closest prior art on the other hand. A general problem to modify a product from one field so that it could be used in any field failed to incite the relevant skilled person to select application to the specific other field of the patent, and directing the problem to a specific other field would add an impermissible pointer to the solution.

A full summary of this case has been published on Kluwer IP Law.

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EPO: T 1729/06, Enhanced pollenizer and method for increasing seedless watermelon yield, European Patent Office (EPO), Board of Appeal, EP1487256, 17 September 2014

Inventions regarding a method of improving the yield of triploid seedless watermelons by pollination with a specific type of diploid water melon are not to be regarded as an essentially biological process for the production of plants and are therefore not excluded from patentability under Article 53(b) EPC. These biotechnological inventions according to Rule 26(2), (3) EPC are therefore in principle patentable under Article 52(1) EPC and Rule 27 EPC.

A full summary of this case has been published on Kluwer IP Law.

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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 [...]

“Que le pouvoir arrête le pouvoir” – From Montesquieu to Battistelli

Charles de Secondat, Baron de Montesquieu knew it all as early as 1748: “Experience teaches that every human being who has the power tends to abuse it. Therefore, it is necessary that the power sets limits to the power. There are three things in every state authority: the legislature, the executive and the judiciary. There is no freedom, if they are not separated from each other.”

Okay, why should a French President in 2014 bother about what one of his learned countrymen wrote in a book in the baroque times? Perhaps because it still matters. On 3 December 2014 the President of the EPO had one member of the Boards of Appeal escorted out of the Office by his “Investigation Unit” and imposed a “ [...]

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