Bgh Rules For Patentees On Appeal - Again

In ii decisions published yesterday on its website, the High German Federal Court of Justice (Bundesgerichtshof, BGH) overturned ii decisions past times the Federal Patent Court (Bundespatentgericht) invalidating the patents inwards conform for lack of novelty. Both decisions are remarkable non because they interruption novel terra firma inwards (patent) constabulary (they don't), only rather because the BGH corrects the fact finding of the lower courtroom as well as finds inwards favour of the patentees. They fuel the impression that the Federal Court of Justice is to a greater extent than patent-friendly than the Bundespatentgericht, or, to pose it some other way, that the Federal Patent Court has larn overly strict.

In the first decision, designated a leading instance (Leitsatzentscheidung) past times the Court, the BGH finds that a fundamental witness lacked credibility as well as concludes that Blue Planet prior role which led the Federal Patent Court to invalidate the patent for lack of novelty was non established. The patent at effect was Nichia's EP 936 682, an important patent concerning white lite emitting diodes that has too been the dependent land of opposition proceedings earlier the EPO. The determination is remarkable because the Federal Court of Justice is fountain past times the fact finding of the lower courtroom unless at that topographic point are specific doubts regarding the correctness as well as completeness of the fact finding (§ 529(1) Civil Procedure Act). The Court held that at that topographic point were specific doubts equally to the credibility of a fundamental witness for Blue Planet prior use, whose testimony was inconsistent amongst that of other witnesses as well as established facts. The twist was that the witness had died inwards the meantime as well as could non live questioned again. This, thus the BGH, did non forestall it from finding the testimony unpersuasive. After it had concluded that world prior role was non proven, the Court assessed inventive measurement based on the tape earlier it as well as found the dependent land matter(s) of the claims to live inventive.

Fig. 1 of EP 1 389 985

In the second decision, the Federal Patent Court had found that claim 1 of EP 1 389 985 concerning a lower leg orthosis lacked novelty over the German utility model DE 299 08 981. It upheld an auxiliary claim. The patentee appealed. The Federal Court of Justice held that the lower courtroom had misconstrued the disclosure of the allegedly novelty destroying document as well as that the document failed to divulge all the features of the invention. It thus went on to assess novelty over two additional documents, too finding the excogitation non anticipated, as well as assessed inventive measurement inwards a unmarried paragraph, lastly the plaintiff had failed to present lack of inventive step. Again the patentee prevailed on appeal.

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