This is to report on a new tendency in the jurisdiction of the Federal Patent Court to use the prerequisite of enabling disclosure (Art. 83 EPC) as an unpredictable rule of reason for patentability. Based on a Federal Supreme Court decision of 2001 (“Taxol”), it had been established case law in Germany that a patentee…

The decision of the Board of Appeal of the European Patent Office which revokes a European patent due to lack of inventive step, is a supra-national legal instrument which can be the object of a complaint to the German Constitutional Court. Such complaints are only admissible if the protection of fundamental rights is no longer…

by Max v. Rospatt In a recent decision the Landgericht Duesseldorf (4a O 277/10 – Pramipexol) issued a preliminary injunction against a generic company before the generic was listed in one of the usual publications (Rote Liste, Lauer Taxe etc.). Plaintiff asserted infringing marketing activities solely based on information obtained from an independent market research…

After the Federal Court of Justice (Bundesgerichtshof, BGH) had confirmed the validity of the German SPC for the enantiomeric escitalopram (and its underlying patent) in 2009, the Federal Patent Court (Bundespatentgericht) now confirmed in further nullity proceedings the validity of the SPC.

by Stephan von Petersdorff-Campen In their posts of 21 Oct. 2010 and 28 Jan. 2011, Hetti Hilge and Max v. Rospatt reported a difference of opinion between German courts on the question of whether or not there is a requirement of “urgency” in cases of ex-parte inspection orders following the so-called “Düsseldorfer Besichtigungspraxis” (Düsseldorf inspection…

By final judgment of November 18, 2010 (Xa ZR 149/07, published in Mitt. 2011, 66 (in German only)), the German Federal Court of Justice (FCJ) decided on two interesting issues in nullity appeal proceedings regarding the German patent DE 101 41 650 pertaining to a patch containing the opioid fentanyl, a strong analgesic drug. Firstly,…