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 [...]
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).
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.
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.
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 [...]
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 [...]