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Infringement proceedings outside Germany do not provide justification for a negative declaratory action in Germany regarding the same European patent

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 [...]

Poland: Bolar Exemption, Supreme Court 23 October 2013

The Bolar exemption must be interpreted narrowly in order not to affect the patent holder’s exclusive rights. The privilege of the generic drug manufacturers who are allowed to conduct clinical trials in order to seek regulatory approval for their therapeutic products based on patented inventions does not apply to their third-party suppliers. Thus, manufacturing of patented pharmaceutical ingredients and offering them to generic drug companies constitutes patent infringement.

The full summary of this case has been published on Kluwer IP Law.

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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.

Background

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 [...]

No Mercy: Exhaustion of patent rights and burden of proof

The use and circulation of a product which has been put on the market by the patentee or a third party acting with the consent of the patentee (e.g. a licensee) cannot be prohibited by the patentee anymore. This concept of exhaustion is not only applicable to the territory of Germany, but to the entire territory of the EU and EEA, i.e. the common European market. This Europe wide exhaustion of patent rights is the basis for parallel imports, in particular for parallel imports of pharmaceuticals and plant protection products.

Being a defense, the burden of prove showing that the product has been put onto the market by the patentee or a licensee lies with the defendant. However, applying this [...]

Cistus Incanus II, Court of Appeal Düsseldorf 31 January 2013

The Court of Appeal Düsseldorf held that the offering of certain products by the defendants was not covered by the scope of the patent due to the specific “Swiss type” wording, which does not grant an absolute product protection, and due to the fact that the advertising of the defendants did not address the patented use specifically enough.

The full summary of this case has been published on Kluwer IP Law.

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Düsseldorf strengthens its position as a venue for patent infringement litigation – Second Patent Senate at the Higher Regional Court started its work in 2014

by Hetti Hilge

The Higher Regional Court Düsseldorf has set up a second Senate (panel of judges) that is specifically competent for patent infringement litigation. The Higher Regional Court is the appeal instance for first instance judgments of the Regional Court Düsseldorf in patent cases.

Already at the beginning of 2013, a third civil chamber that is specifically competent for patent infringement cases has been set up at the District Court Düsseldorf as a result of the increasing number of patent infringement complaints at this venue (see our previous post on the announcement). With about 600 cases per year, the District Court of Düsseldorf is the most popular court for patent infrin [...]

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