The Federal Court of Justice held that:

  1. The sequence of steps in a method claim is normally determined by the claim’s wording.
  2. A completely new attack based on a document only filed upon appeal is too late and not to be admitted on appeal.

Case date: 09 May 2017
Case number: X ZR 97/15
Court: Federal Court of Justice of Germany

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


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One comment

  1. When in some aspects the case law of the BGH differs from the case law of the BA of the EPO, in the present case they are congruent.

    In a process claim the sequence of steps is binding, e.g. T 1595/15.

    Filing in appeal a document which should have been filed in first instance, here BPatG-BGH, before the EPO OD-BA, is too late, cf. Art 12(4) RPBA.

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