Simple patent licences in insolvency
By Stephan von Petersdorff-Campen
Under paragraph 103 of the German Insolvency Act, an insolvency practitioner has the right to choose whether or not to honour existing contracts of the insolvent company. Does this right also apply for any patent licences granted by the insolvent company?
The Regional Court Munich has ruled in a case in which the insolvent patent holder had granted a simple licence to a third party (judgment of 9 February 2012 – Az. 7 O 1906/11). Astonishingly, there is currently no case law for such a constellation – after all, it is of substantial financial importance for the licensee that any investments in manufacturing plants, warehouses and marketing be safeguarded [...]
Effects under Procedural Law if Patentee and Exclusive Licensee Claim Damages as “Essential Joint Litigants”
At the beginning of this year, the German Federal Court of Justice (“FCJ”) rendered in “Tintenpatrone II” (“Ink Cartridge II”) (Docket No. X ZR 94/10) a decision of interest concerning the relation of patentee and exclusive licensee with regard to the claim of damages, following it decisions “Ink Cartridge I” and “Cinch-Plug”.
Plaintiff (1) is the owner of a utility model concerning an ink cartridge. Plaintiff (2) is his exclusive licensee in Germany. Subsequent to court decisions confirming infringement and (laborious) proceedings to obtain information and rendering of accounts, plaintiffs claimed in new proceedings the payment of damages according to the calculation me [...]
Düsseldorf’s Procedural Guidance
- By Markus Lenssen,
for Kluwer IP Cases
About a month ago Rüdiger Pansch reported on the new “General Terms and Conditions” of the Regional Court of Munich in patent infringement matters (http://kluwerpatentblog.com/2012/03/20/patent-chambers-of-munich-district-court-decree-general-terms-and-conditions/).
Now, also the Regional Court of Düsseldorf has put more elaborated advice for the parties in writing. In general, this new procedural order more or less goes along the well-established lines used by the court already in the past. Also the Düsseldorf court takes the opportunity to drop a few lines about the preferred maximum length of briefs. Especially, the court tries to admonish the parties to hit the nail on the head instea [...]
Third Civil Division for patent infringement cases in Duesseldorf
- By Hetti Hilge,
for Kluwer IP Cases
The District Court of Duesseldorf will set up a third division (panel of judges) for patent infringement litigation. In addition, the Duesseldorf Court of Appeal will at least staff up, and possibly set up a second patent senate for appeal cases.
With about 600 patent cases per year, the District Court of Duesseldorf is the most popular court for patent infringement litigation in Germany with almost as many cases pending as in the other competent patent infringement courts in Germany altogether.
While the increasing case numbers have resulted in a longer duration of the proceedings lately, this trend will hopefully be reversed by the expansion. Moreover, Duesseldorf has strengthened its po [...]
Who’s the skilled sausage-maker? It’s a team, decrees Germany’s Federal Court of Justice
As in other jurisdictions, German Courts try to determine whether an invention is patentable over the prior art by looking at it through the eyes of the notional skilled person at the effective filing date of the patent at issue. In a decision pronounced on March 6, 2012 (docket X ZR 78/09), the German Federal Court of Justice (Bundesgerichtshof) refined its case law on the definition of the skilled person, this time on a case to do with sausage making.
The case concerned a process for manufacturing meat products such as sausages, by stuffing a certain type of tubular casing which is delivered to the stuffing plant on a roll. The casing is called reel stock.
The use of reel stock in the prio [...]
Res judicata prevails over the retroactive and absolute effect of the patent revocation
Mr X was ordered to pay damages for the infringement of a French patent No. 87‑03865, relating to a massage device, by a decision of the Cour d’Appel of Limoges on 10 September 2001. In the absence of an appeal on a point of law, this decision became irrevocable. However, in a separate action, the same patent was subsequently revoked, for lack of inventive step, in a decision of the Cour d’Appel of Lyon on 21 February 2002, which also became irrevocable by the dismissal of the appeal lodged against it before the Cour de Cassation (Com., 5 October 2004, No. 02‑15.214). Relying on the repayment of undue sums, Mr X then claimed the restitution of €6,000 which he had paid in pursuance of [...]
