To the extent that summer 2014 existed at all in central Europe, experts agree that it is now definitely over. There is some controversy whether we ever had summer in Germany this year, but at least it was proven that life without air conditioning is possible.
Meanwhile, the Munich IP Community is busily preparing for Oktoberfest starting tomorrow. So while we are all still sober, time for a litte summary on the latest developments in the case law of the German Federal Court of Justice (FCJ) in “Summer” 2014.
In one decision (X ZR 36/13), the FCJ took the opportunity to explain its current thinking on the scope of equivalence a bit further. In the decision under appeal, the Higher Regional C [...]
The FCJ held that the priority of an earlier application may be rightfully claimed if the technical information described for a specific embodiment or otherwise in in the application is seen by the skilled person as an example for the more general invention disclosed in the later application and if this more general teaching was disclosed in the prior application as part of the invention.
The FCJ held that legal provisions in force at the priority date must be taken into consideration when assessing novelty and inventive step of an invention. These legal provisions may incite the skilled person to work in a certain direction so that this makes the invention obvious.
The Higher Regional Court Düsseldorf has ruled in its decision of 20 March 2014 (docket number 12 W 8.14) that an explicit allegation of entitlement to a national part of a European patent, e.g. by sending a warning letter or the filing of a court action, does not include an implicit allegation of entitlement (stillschweigende Berühmung) to the other parts of the same European patent in the respective other countries, nor does this provide grounds for declaratory interest (Feststellungsinteresse) in Germany, i.e. a legitimate interest in filing a negative declaratory action regarding the German part of the European patent.
The circumstances resulting in the German proceedings were infringe [...]
Reports that say there’s — that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things that we know that we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know.
Donald Rumsfeld, United States Secretary of Defense, 1975-1977 and 2001-2006
According to Article 89 of the Agreement on a Unified Patent Court (UPCA), the Agreement is set up to enter into force on one of three dates, whichever is the latest. The first date provided in the Agreement was 1 January 2014. As we all know, it did not h [...]
Just recently, the judgement of the German Federal Court of Justice (Bun-desgerichtshof, BGH) in re X ZR 31/11 concerning a tyre removal machine has been published. This judgement is of relevance as the Federal Court of Justice had to answer a question of claim construction relevant in infringement and nullity proceedings likewise. The relevant question was whether a claim referring back to a multitude of preceding claims necessarily requires that all features of the multitude of claims re-ferred back to are fulfilled or not.
In this particular case about EP 1 177 920 there have been two independent subclaims (claims 1 and 13) and eleven subclaims dependent on claim 1 (claims 2–12). Wherea [...]