The Federal Court of Justice held that:
- The sequence of steps in a method claim is normally determined by the claim’s wording.
- 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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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.