The Federal Court of Justice held that the defence of the patent in suit on the basis of claims filed only at the appeal stage as an auxiliary request can nevertheless be considered to be expedient if the Patent Court had only informed the Defendant in the oral proceedings that it no longer intended to…

In this case the FCJ considered the question of when the enforcement of a judgment in an infringement action should be suspended in light of a decision of the Federal Patent Court in a parallel nullity action concerning the same patent. The Court held that there is no reason for a suspension if the patent…

by Bernward Zollner for rospatt osten pross In a recent decision of 10 January 2017 (BGH X ZR 17/13) concerning a “Restitutionsklage” against a final patent infringement judgement of the Appeal Court Düsseldorf the German “Bundesgerichtshof” has broadened the scope of the doctrine which the court has developed under the heading “Crimp-Werkzeug”. This doctrine was…

Italy has ratified the Unified Patent Court Agreement. It is the 12th member state of the Unitary Patent project to do so. The instrument of ratification, the formal final step in the procedure, was deposited with the EU Council on 10 February 2017. The two chambers of the Italian Parliament had approved the ratification bill…

The UK will ratify the Unified Patent Court Agreement (UPCA) in March, most likely before the Brexit article 50 is triggered. German will be ready to ratify soon as well, but will delay the official deposit of its instrument of ratification with the EU Council, with a view to the Court starting its operations on…

In this case the FCJ expanded on earlier case law regarding claim construction, in particular how a term used in the claim language should be interpreted in light of the specification and the entire set of claims. The Court held that the subject matter of the main claim can generally not be limited by a…

In this case the FCJ dealt with the prerequisites for equivalent infringement. In particular it gave further guidance in relation to the so-called “3rd Schneidmesser question” which concerns the parity of a variant with the patented solution. The FCJ held that the considerations of the skilled person leading to an assessment of the variant as…

Germany has resumed preparations for the ratification of the Unified Patent Court Agreement. A draft bill for the implementation of the UPCA was published on 9 December 2016 by Justice Minister Heiko Maas. Together with the UK, Germany is one of the two countries that still have to ratify the UPCA before the Unitary Patent system…

by Rüdiger Pansch for rospatt osten pross In two recent decisions, the Federal Supreme Court developed its case law on entitlement strengthening the position of the plaintiff in entitlement proceedings. Judgment of 27 September 2016, docket no. X ZR 163/12 (“coating process”) This decision develops the case law on benefits of use in cases of…