The Board of Appeal ruled that color figures contained in the application when filed could be used as a basis for amendments. The board had to deal with the problem that no original copy of the color figures was available to the board. Therefore, the board considered it appropriate to compare sets of copies of the figures to discover whether it could be consistently determined that one of these sets contained the most information and to assume that the originally filed figures contained at least the information in that one set.
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[...]The German Federal Court of Justice (Bundesgerichtshof, BGH) addressed some interesting questions on patents protecting methods relating to data in the decision “MPEG-2-Videosignalcodierung” (“MPEG-2 video signal encoding”), judgement of 21 August 2012, X ZR 33/10. This all was round up by explanations on patent exhaustion in the context of test purchases.
In simple terms, the patent in suit covered a method for encoding video data according to the MPEG-2 standard that is used for DVDs. The case was about production of DVDs by the defendant as requested by a test purchaser of the plaintiff. For this purpose the test purchaser provided a master tape with the video data already in its encoded [...]
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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[...]A composition obtainable on the market is at least not then novel if the composition can be analyzed and reproduced by a skilled person without undue burden. For this purpose, it is sufficient for a complex com¬po-sition that is not easily identifiable, if the skilled person can establish a manageable number of hypotheses on the potential composition, one of which could then be confirmed with the available analysis tools. A unique outcome that excludes any other conceivable composition is not required.
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[...]The High Court (Arnold J.) decided to refer further questions on the interpretation of Article 3 of the SPC Regulation to the CJEU,, particularly in relation to the Article 3(a) requirement that “the product is protected by a basic patent in force”, suggesting an interpretation which focuses on the “inventive concept” of the patent rather than the particular wording of the claims despite the ruling in Medeva. In addition, the Court sought clarification on whether it is possible to obtain more than one SPC per patent, given the differing interpretations of the Biogen decision in light of Medeva.
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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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