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There’s life in the old dog yet: Infringement under the doctrine of equivalence

Many practitioners in Germany thought the doctrine of equivalence to be rather at its end following two Supreme Court (BGH)-decisions in 2011 (“Okklusionsvorrichtung” and “Dyglycidverbindung”). Now, the renowned Higher Regional Court Duesseldorf has – in my eyes, correctly – made clear that the old dog is still alive.


According to standard practice of the BGH, equivalence has three prerequisites: (i) an identical effect attributed to the alternative means; (ii) perceptibility of the alternative solution for the skilled person; and (iii) equivalence in value.

The BGH uses the following formula to describe the third prerequisite (equivalence in value) in detail: The ref [...]

The patent claim as a technical teaching in its literal sense

In its decision “Fahrradkurbeleinheit” (“bike crank assembly”) the Higher Regional Court of Düsseldorf has lifted an injunction by the Regional Court of Düsseldorf on appeal (OLG Düsseldorf, I-2 U 78/12, 20 June 2013). Contrary to the first instance the court did not find for patent infringement. Questions of literal and equivalent infringement have been discussed and the court gave some useful guidance on the interpretation of patent claims.

One of the issues of the case was whether the claim wording “formed on” required two parts – if not being integral – to be at least firmly connected to each other. Here, the court stated that “formed on” did not necessarily mean that the one part [...]

There’s Life in the Old Dog Yet – Ex Parte Injunctions in Switzerland

Ex parte measures are rather difficult to obtain in patent matters in Switzerland (except from evidence-protection measures). Nevertheless, the Swiss Federal Supreme Court had the opportunity to opine on this subject in a recent decision dated 21 August 2013. Although this case will become better known because it was the first time that the first instance, the Swiss Federal Patent Court, had to deal with the doctrine of equivalence (and affirmed an infringement by equivalent means, see the preliminary decision of the Federal Patent Court here), it is also worth to analyze the requirements of ex parte measures in Switzerland.

In the case at hand, the patentee was informed in December 2012 by [...]

Diglycidverbindung (Diglycidyl Compounds), Federal Court of Justice (Bundesgerichtshof), 13 November 2011

Under the doctrine of equivalents, a patent does not convey protection for all options disclosed in the broader patent description if these options are not specifically included in the patent claims.

Click here for the full text of this case.

A summary of this case will be posted on

Bayer v. Sandoz (drospirenone), District Court The Hague (Rechtbank Den Haag), 24 January 2013

The PI judge in the District Court of The Hague held that the processes used to manufacture the generic products in dispute did not fall within the invoked patents’ scope of protection, and particularly that these did not comprise equivalent measures, because the allegedly equivalent substances had significantly different chemical compositions and functionality. Finding the alleged infringing processes to be equivalent would be contrary to legal certainty.

A summary of this case will be posted on

Of Christmas tree stands and Christmas tree trunks

As Christmas is coming closer, the “where is the Christmas stand?”-question comes up again. This little piece of engineering only used once a year is not only subject matter of several patents but has kept the Higher Regional Court of Düsseldorf busy, too (docket No. I-2 U 84/03).

Who could imagine that a Christmas stand would be characterised by not less than 18 features? And who could have guessed that having just one single power transmission device would make the difference? Most probably no one (at least not outside of the Christmas season) has ever thought about Christmas tree stands and their ability to keep abnormally contoured Christmas tree trunks in such depth as the court had to [...]

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