The FCJ confirmed that the cited prior art should, generally, provide concrete suggestions, hints or at least provide other reasons beyond the recognisability of the technical problem to seek the solution to a technical problem in the way as presented in the patent. The decision by the FCJ also confirms that if an attack on patentability based on a public prior use is to be successful, it is critical that the plaintiff makes a conclusive submission, i.e. a submission that commands that the claim is invalid if all the asserted facts are assumed to be true.
Case date: 20 March 2018
Case number: X ZR 4/16
Court: Federal Court of Justice of Germany
A full summary of this case has been published on Kluwer IP Law.