by Stefan Lieck
In a judgement of 17 January 2013 (docket no. I-2 U 87/12), the Düsseldorf Higher Regional Court confirmed its previous case law according to which the issuance of a preliminary injunction against generic companies based on patent law is possible under less stringent conditions.
According to the case law of the Düsseldorf Higher Regional Court, a preliminary injunction may only be issued if the validity of the asserted patent may be assumed to be sufficiently certain. This is generally the case only if the patent has already survived the first instance of opposition or nullity proceedings (OLG Düsseldorf – Olanzapin; OLG Düsseldorf – Harnkatheterset). In exceptional cas [...]
One of the big difficulties in the everyday evaluation of inventive step revolves around the role that the problem underlying the invention should play in such evaluation. Two examples of more recent decisions of the German Federal Court of Justice are provided here to illustrate “the problem”.
In its decision Kosmetisches Sonnenschutzmittel III (X ZR 72/08), discussed here, the Federal Court of Justice (FCJ) decided that the „Problem“ derivable from the description of the patent in suit is not the sole starting point for the evaluation of inventive step; rather must it also be considered whether the solution of any (another) problem with which the skilled person would usually be entrust [...]
by Stephan von Petersdorff-Campen
The amount at issue in a legal claim serves as the basis for establishing the court fees and lawyers’ fees to be reimbursed to the successful party. The consequences (including indictable consequences) of a claim value that has been set too low have previously been the object of contributions to this blog.
§8 IV Unfair Competition Act (UWG) stipulates that the right to injunctive relief, which does exist in principle, is forfeit wherever it is asserted abusively. By analogy, the Court of Appeal Hamm applied this provision to copyright law and dismissed a claim for an injunction and award of lawyers’ costs that had accrued prior to proceedings. It found [...]
The FCJ decided in the recently published decision “Wundverband” [Wound Dressing] “Moelnlycke Health Care v. BSN Medical” (docket X ZR 70/12) on 19 February 2013 that if patentee has granted an exclusive license after he has filed an infringement action, an exclusive licensee will be (in part) a legal successor of the patentee. As a consequence, as long as patentee’s claims (including such claims concerning the time-span after grant of an exclusive license) are pending at another German court, the exclusive licensee has no right to sue with regard to the same subject matter due to the force of res judicata of the judgement against the legal successor and the lis pendens rule.
The Federal Court of Justice in Germany held in its recent judgment of January 22, 2013 (court docket: X ZR 70/11) that to claim co-inventorship the contribution of the co-inventor need only be found in parts of the description of the patent and does not have to be found in the claims. The Court stated that an invention manifests itself throughout the entire patent specification which includes the claims, the description with examples, and the figures. Therefore, if a co-inventor’s contribution is included in the description this is sufficient to establish co-inventorship. The claims of the patent only have a limiting function as they exclude embodiments in constellations where embodiments [...]
The German Federal Court of Justice (Bundesgerichtshof, BGH) addressed some interesting questions on patents protecting methods relating to data in the decision “MPEG-2-Videosignalcodierung” (“MPEG-2 video signal encoding”), judgement of 21 August 2012, X ZR 33/10. This all was round up by explanations on patent exhaustion in the context of test purchases.
In simple terms, the patent in suit covered a method for encoding video data according to the MPEG-2 standard that is used for DVDs. The case was about production of DVDs by the defendant as requested by a test purchaser of the plaintiff. For this purpose the test purchaser provided a master tape with the video data already in its encoded [...]