The Federal Court of Justice confirmed that a nullity defendant can defend its patent to a limited extent only insofar as it is attacked by the nullity plaintiff. The limited defence of the patent in dispute by combining an attacked claim with an uncontested subclaim or with one of several variants of an uncontested subclaim is inadmissible.

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

 


_____________________________

To make sure you do not miss out on regular updates from the Kluwer Patent Blog, please subscribe here.

image_pdfimage_print

One comment

  1. It seems that the proprietor cannot defend himself in combining an invalid independent claim with a dependent claim.

    This is due to a legal problem, cf. free translation of § 29 of the decision:

    Because the limited defence against a partial nullity claim even to the extent of an unchallenged dependent claim would boil down to a counter-claim by the patentee against the claimant for invalidity of the patent in dispute to the extent of the unchallenged dependent claim. Such a lawsuit is not provided for in the law and therefore cannot be subject to of a limited defence of the nullity defendant.

    What is then the possible defence of a proprietor facing a nullity claim?

Comments are closed.