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Kluwer Patent Cases

Monopoly on Test Results? Protection of Immaterial Products as “Fruits” of a Patented Method under Sec. 9 (3) German Patent Act

Based on method claims, German Patent Law does not only grant the patentee an exclusive right to exercise the method on the German territory, but also a monopoly to offer, bring into circulation or to use in Germany a “fruit” that is the immediate result of the patented method (Sec. 9 (3) German Patent Act). This is true even if the method has been carried out, and the “fruit” has therefore been “picked”, in another – not designated – country and has then been imported into Germany.

Following a 2012 decision of the Federal Supreme Court (“MPEG-2 Videosignalcodierung”), which specifies how this rule applies to immaterial products like data, the District Court Munich now ha [...]

Plasma Torch / Agilent, European Patent Office (EPO Board of Appeal), 25 February 2013

An amendment of independent patent claim 1 during prosecution introduced a new feature. According to the Examining Division this led to the combinations of features of dependent claims 2-4 to extend beyond the disclosure of the application as filed (Art. 123(2) EPC). The Board of Appeal held that the focus of the Examining Division was disproportionally directed to the structure of the claims as filed and did not uphold the ED’s decision, because the disclosure directly and unambiguously referred to a variation of but not an alternative to the embodiment disclosed in the application as filed.

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Virgin Atlantic Airways Ltd v. Jet Airways (India) Ltd, High Court Chancery Division (High Court Chancery Division), 27 July 2012

The Court held that a decision by the EPO relating to the UK designation was not capable of challenge. In any event, the procedure chosen by the claimant to challenge the decision (an application to correct the UKIPO register based on Rule 50 of the Patents Rules 2007) was wrong, because it required the consent of the claimant (which would clearly not have been forthcoming). An application for rectification of the Register under section 34 Patents Act 1977 should have been used.

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Medimmune v. Novartis & Anor, Court of Appeal Civil Division, 10 October 2012

The Court of Appeal held that while structural approaches for determining obviousness (with reference to the Pozzoli test), are useful, the importance of the statutory test cannot be undermined. The ultimate question that the Court must address is whether it was obvious to the skilled but unimaginative addressee to make a product or carry out a process failing within the claim.

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Pfeffersaeckchen, Federal Court of Justice (Bundesgerichtshof), 6 March 2012

If the patent provides a multi-level method to be applied in more than one production entity (here: the preparation of sausage casing as endless rolls and their automatic filling at the sausage manufacturers’), the “skilled person” can be a team of several persons specialized in different disciplines, e.g. mechanical engineering, process technology and food technology, whose knowledge is combined.

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Palettenbehaelter II, Federal Court of Justice (Bundesgerichtshof), 17 July 2012

If replacement of a worn-out component during the lifespan of a patented combination product is expected in the relevant trade circles, this will form part of the intended and thus admissible use, unless the technical effect of the invention is reflected in such component. Otherwise replacement generally constitutes patent infringement, regardless of the component’s significance for the invention. However, if the replacement is an inherent component of the intended use of the product put on the market with the patentee’s consent, both customers and competitors who have acquired the used product for repair and resale purposes may replace such component.

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