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Inspection Orders Against Third Parties

In a recent decision (BGH X ZR 7/12) the Bundesgerichtshof had to decide whether the Appeal Court violated its general obligation to elucidate the facts relevant for the decision by not ordering the inspection of a machine by an expert. The underlying case concerned a claim for patent infringement by use of a patented process.

The BGH found that in principle the Infringement Courts can have the legal obligation to order an inspection under the Rules of Civil Procedure (ZPO) if the prerequisites for such an (ex officio) order are fulfilled. The BGH clarified that such an ex officio order under § 144 ZPO against the defendant (or even a third party) was admissible under the same prerequisites [...]

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