The Court held that a lack of impartiality of a court-appointed expert can be assumed if the expert maintains a close economic relationship with one of the parties. This is not necessarily so where the expert was engaged by a third party that maintains a consulting relationship with one of the parties. A summary of…
This decision deals with a court order to obtain an expert opinion in a nullity appeal proceeding subject to the new procedural rules that apply to nullity actions filed since October 1, 2009. Due to revised rules in nullity appeal proceedings, as a general rule, the appeal court shall decide on legal questions only, and…
The Appeals Court held that an argument that was not raised in first instance proceedings, shall not be considered a new matter, and consequently be dismissed, if it only further specifies or clarifies the line of argumentation in first instance. On the other hand, f the plaintiff refers to the specifics of a technical teaching…
Under the doctrine of equivalents, a patent does not convey protection for all options disclosed in the broader patent description if these options are not specifically included in the patent claims. Click here for the full text of this case. A summary of this case will be posted on http://www.Kluweriplaw.com
An amendment of independent patent claim 1 during prosecution introduced a new feature. According to the Examining Division this led to the combinations of features of dependent claims 2-4 to extend beyond the disclosure of the application as filed (Art. 123(2) EPC). The Board of Appeal held that the focus of the Examining Division was…
(1) The FCJ decided that if a plaintiff can prove there was an “offering” of means for the patented purposes, it can be assumed that the means were also delivered for those purposes, and that therefore the plaintiff has a right to claim damages and the provision of information due to indirect infringement. The means of proof will be sufficient even if, in cases of indirect infringement, it was only with the delivery for the patented purposes that the damages were incurred.
(2) Furthermore, when a patent is assigned during pending patent infringement proceedings, the right of the assignee to claim damages shall arise starting on the date of the assignment agreement, and not on the date of registration (contrary to the case law of the Higher Regional Court Dusseldorf). With regard to claims to damages for the time period after assignment, the plaintiff (assignor) will need to assert that payment must be made to the assignee.
Recent U.S. Court of Appeals for the Federal Circuit and USPTO decisions underscore the potential value of challenging a granted U.S. patent in a USPTO proceeding, even if the patent already has been held infringed and/or not invalid in district court litigation. In Fresenius, USA Inc. v. Baxter International, Inc., the Federal Circuit interpreted the ex parte reexamination…
by Bernward Zollner The term “offering” must be understood in a broad sense. It is sufficient that the per-son who is offering draws the attention of the public to the offered object so that – clearly – advertisements or brochures can be qualified as an offer in the sense of the patent statute. In this…
Judgments from the English Courts are nowadays usually delivered in draft form and in strictest confidence from the Judge’s clerk to the parties by way of an attachment to an email. This invariably causes an anxious lawyer to open the document and to hit “Ctrl/End” to find the conclusion of the Court, followed by a…
On 10 June 2013 the Court of Appeal of Barcelona handed down a very interesting decision that appears to have written the penultimate word in the long saga of decisions discussing the meaning of “imminence.” As discussed in other blogs, although the so-called “Enforcement Directive” (Directive 2004/48/EC) was meant to strengthen the protection of intellectual…
