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Germany: Sterilcontainer, Court of Appeal of Dusseldorf, I-15 U 19/14, 27 March 2014

At a tradeshow in Düsseldorf the Defendant co-organized a so called “Turkish Pavilion” featuring several companies of the Turkish region “Samsun”. The Court held that this role of the Defendant was sufficient to be held liable for patent infringement, even where the Defendant itself did not manufacture or sell the products. Exhibiting at the tradeshow was considered as an offer for sale which would infringe the exclusive rights of the patentee.

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

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Germany: Analog-Digital-Wandler, Federal Patent Court of Germany, X ZR 2/13, 27 May 2014

The FCJ held that the Defendant in a nullity action is only required to prepare an auxiliary request following the preliminary opinion of the Federal Patent Court which takes those aspects into consideration which were mentioned by the Patent Court. In general, there is no reason for the Defendant to prepare additional auxiliary requests with regard to other attacks which were not addressed by the Patent Court in the preliminary opinion or which were considered by the Patent Court as not successful.

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

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Extraterritorial acts can constitute a patent infringement in Germany

The Bundesgerichtshof (German Federal Court of Justice) in the decision Audiosignalcodierung (judgement of 3 February 2015, X ZR 69/13) confirmed the principle established in the Bundesgerichtshof decision Funkuhr II, according to which the delivery of a product to a third party in a territory outside of Germany constitutes a patent infringement in Germany if the party was aware that the product will subsequently also be imported into Germany.

In the case Audiosignalcodierung concerning contributory infringement the defendant was a Chinese company that delivered means which constituted an essential element of the patented method, inter alia, to another company in China. Following the finding [...]

German court reverses decision on pemetrexed dipotassium (Eli Lilly v Actavis)

With its judgment of March 5, 2015 (I-2 U 16/14), the Higher Regional Court (HRC) Dusseldorf reversed the first-instance decision and has now come to same conclusion as did the High Court of Justice for England and Wales (here) by holding that pemetrexed dipotassium does not fall within the equivalent scope of protection of EP1 313 508 claiming pemetrexed disodium (in a combination formulation with vitamin B12 or a pharmaceutical derivative thereof). The facts of the case have been set out in the above-referenced blog by our colleagues at Bristows, to which we wish to refer.

In the above-mentioned High Court decision, a significant factor was the prosecution history. Justice Arnold summari [...]

Germany: Transit of Patent Infringing Goods, Federal Court of Justice of Germany, X ZR 72/13, 25 June 2014

Goods placed in transit proceedings do not infringe a patent in the transit country. It is not relevant whether the goods were placed in so-called “T1” external transit proceedings or in “T2” transit proceedings where goods are declared to be released for free circulation on the market of the European Union and are forwarded without sealing. Patent infringement may only be assumed if the goods are subject to a sales transaction in the transit country or if the goods are imported for this purpose. This must be examined on a case-by-case basis.

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

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Monopoly on Test Results? Protection of Immaterial Products as “Fruits” of a Patented Method under Sec. 9 (3) German Patent Act

Based on method claims, German Patent Law does not only grant the patentee an exclusive right to exercise the method on the German territory, but also a monopoly to offer, bring into circulation or to use in Germany a “fruit” that is the immediate result of the patented method (Sec. 9 (3) German Patent Act). This is true even if the method has been carried out, and the “fruit” has therefore been “picked”, in another – not designated – country and has then been imported into Germany.

Following a 2012 decision of the Federal Supreme Court (“MPEG-2 Videosignalcodierung”), which specifies how this rule applies to immaterial products like data, the District Court Munich now ha [...]

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