What happens in Germany’s bifurcated patent litigation system, if – during pending infringements proceedings – the nullity court declares the patent partly invalid? The patentee can amend its infringement action accordingly. The infringement action is then based on the patent claim as amended by the nullity court, and not on the patent claim as initially…

The Appeal Court Karlsruhe has recently issued a judgement in a preliminary injunction proceeding. Plaintiff has sought to obtain a confirmation of the first instance’s judgement. Defendant had filed the appeal against the judgement by which he had been ordered to cease and desist from producing, offering and marketing the patent infringing devices after the…

Once again, the German Federal Supreme Court has underlined the primacy of the patent claim over the patent’s description. The technical problem to be solved by the invention is to be established by virtue of the patent claim only. In consequence, a broad patent claim must not be limited by a specific technical problem expressed…

Patent protection for technical products expires after 20 years. However, there is no rule without exception. In its recent decision “Femur-Teil”(judgement of 15 April 2010, I ZR 145/08), the German Federal Court granted protection against an (almost) identical copy of a femoral element for a hip joint endoprosthesis, although patent protection had already expired in…

In Grimme Landmaschinenfabrik GmbH v Scott [2010] EWCA Civ 1110 the English Court of Appeal stated clearly its support for judicial collaboration facilitating de facto harmonisation of patent law in Europe. The Court then interpreted the UK provisions on indirect/contributory infringement consistently with approaches taken in The Netherlands and Germany. The case in question concerned…

The court held that the plaintiff who is listed as proprietor of the patent in the patent register is allowed to claim both injunctive relief and damages as well as claims to rendering accounts and provision of information to prepare the damage claim for all infringing acts committed during the time of his/her enlistment, despite…

According to the so-called “Duesseldorfer Besichtigungspraxis” (Duesseldorf inspection practice), a patent owner who establishes a prevailing likelihood of infringement may secure evidence by inspection of the allegedly infringing device or method by a court-appointed, independent expert. The inspection order is granted in ex-parte proceedings. Contrary to other preliminary injunctions, the required urgency is generally presumed…

In this blog I report about how the Bundesgerichtshof (BGH) has recently eliminated some potential for conflicting decisions in Germany’s bifurcated patent litigation system. The separation of infringement and invalidity proceedings is the basis for what we call the “mouse and elephant strategy”. In the infringement proceedings the patentee tries to establish a scope of…

In my first post I have described the old shabby courtroom of the patent chamber of the District Court of Düsseldorf. Meanwhile the court has moved to a new court house which is situated close to the central station. This new location is the result of a more service oriented approach of the judicature. Not…