The Court held that a certain means does not relate to an essential element of the invention just because it is used for a step in the method preceding the patented steps of the method. Even where this is necessary in order to apply the method, no contributory infringement of the patent can be established.
The Court further held that also the sale of an embodiment containing means relating to essential elements of a patent to a third party abroad, who then ships the products into Germany constitutes a liability of the first party if this party knew and intended to have the goods shipped into Germany.
In its decision Digitalblock (digital block) the Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) has discussed the question whether “sleeping” features of a device can cause patent infringement (judgement of 19 February 2015, docket No. I-15 U 39/14). The case was about set-top boxes for receiving free-to-air and encrypted television signals. The patent concerned a specific form of encryption using a specific algorithm and the device claim at stake required various features of such a device including inputs, logic means and a special algorithm. The attacked set-top boxes did not perform this special algorithm but contained freely available program libraries in their [...]
In this case the FCJ discussed the criterion of “equivalence” for a non-literal infringement of a patent. The Court held that one has to assess all technical effects which have to be achieved with the patented features to solve the underlying technical problem. The entire combination of these effects forms the patented solution. For the assessment of an equivalent infringement one has to look at the entire combination of effects and may not distinguish between effects which might be “relevant to the invention” and “merely additional” effects.
Some Late Summer Thoughts about Molten Polymers and two Decisions by the German Federal Court of Justice
Now that the unusual heat of this summer in central Europe finally seems to have ended, it might be a good point in time to activate our cerebral bio-polymers again. So let us muse about the melting of polymers in general and consider a particular patent that gave the German Federal Court of Justice something to think about.
The patent at stake was European Patent 1 102 809, relating to a method for preparing a polymer foam (in German: Polymerschaum) comprising four steps and an article comprising the polymer foam obtainable according to this method. In a slightly simplified form, claim 1 [...]
by Bernward Zollner
In a decision of 20 January 2015 the German Bundesgerichtshof has discussed the validity of the EP 0 964 031 and has confirmed at the end the previous judgement of the Bundespatentgericht by which the patent had been found to be invalid. The reasoning, however, was different: The claim as defended concerned polymeric material and the average size of the dispersed domains. The Bundespatentgericht had taken the position that the average size from 0,2 until less than 1 Micron referred to an arithmetic value although the patent specification did not contain any information as to the determination of the value. This value was anticipated by one of the documents under discussio [...]
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 [...]