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Germany – late filing of new prior art can be too late

The Oberlandesgericht Düsseldorf (Higher Regional Court, appeal instance) just issued a court order on the admissibility of new prior art that the defendant discovered only in the second instance infringement proceedings. The defendant and appellant in the proceedings had requested a stay of the infringement appeal based on this new and relevant prior art until a decision in the parallel invalidity action will be rendered. Irrespective of the admissibility of the new citation in the parallel invalidity action, the infringement appeal court requested the defendant to provide sufficiently justified reasons for the late filing in order to admit the new citation.

Pursuant to the formal rules o [...]

Germany: Zugriffsrechte, Federal Court of Justice of Germany, X ZR 35/11, 14 October 2014

Dealing with claim construction issues, the FCJ held that a claim construction which leads to the result that none of the embodiments described in the patent specification would be covered by the claim can only be considered if other possibilities of claim construction have to be definitely excluded or when the claim contains a clear indication that subject matter should be claimed which deviates from the description. If, on the contrary, the claim indicates that the embodiments from the prescription should be covered by the claimed features, this must be taken into consideration for the claim construction.

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

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Germany: Quetiapin, Federal Court of Justice of Germany, X ZR 41/13, 13 January 2015

When defining the technical problem underlying an invention, it may not simply be assumed that the person skilled in the art needed to address a particular problem. On the contrary, the technical problem must be formulated so generally and neutrally that the question as to which incentives a person skilled in the art obtained from the state of art, arises only when examining inventive step.

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

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Germany: Repaglinide, Federal Court of Justice of Germany, X ZR 128/09, 11 November 2014

(a) Advantages of the invention that have only become evident once the invention was made, and at which therefore the skilled person would not have directed his efforts to further develop the state of the art, may not be used to define the technical problem underlying the invention (the Aufgabe of the invention).

(b) Depending on the conditions of the technical field and the circumstances of the individual case, any of several different ways to solve the problem can be regarded as obvious.

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

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Germany: The provision of information as a technical teaching? (Federal Court of Justice, “Bildstrom”)

The German Bundesgerichtshof (Federal Court of Justice, FCJ) has issued the decision “Bildstrom” (judgment of 26 February 2015, docket no. X ZR 37/13) dealing with the patentability of a system and a method for displaying an image stream.

The attacked patent EP 1474927 concerns a technical teaching for displaying an image stream, wherein at least two subset image streams are displayed simultaneously and the subset image streams are created from one original image stream. The original image stream may for example be recorded by a swallowable capsule and two subset image streams may e.g. show every second frame of the original image stream in original speed so that each frame is displayed [...]

Germany: Ubichinon, Court of Appeal of Düsseldorf, 2 U 8/14, 7 August 2014

In this judgment the Court of Appeals Düsseldorf held that the manifest preparation of a product for a specific use which is covered by a use claim can be seen in information on the packaging and in the patient information provided with the pharmaceutical product to the end user. It confirms earlier case law in that an infringement of a use claim requires a manifest preparation which clearly states that the product may be used for the patented indication (the specific medical use).

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

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