In 2 decisions published yesterday on its website, the High German Federal Court of Justice (Bundesgerichtshof, BGH) overturned 2 decisions past times the Federal Patent Court (Bundespatentgericht) invalidating the patents inwards adjust for lack of novelty. Both decisions are remarkable non because they interruption novel dry reason inwards (patent) constabulary (they don't), simply rather because the BGH corrects the fact finding of the lower courtroom together with 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 set it some other way, that the Federal Patent Court has run overly strict.
In the
first decision, designated a leading instance (Leitsatzentscheidung) past times the Court, the BGH finds that a fundamental witness lacked credibility together with concludes that the populace prior role which led the Federal Patent Court to invalidate the patent for lack of novelty was non established. The patent at resultant was
Nichia's
EP 936 682, an important patent concerning white low-cal emitting diodes that has likewise been the dependent area of opposition proceedings earlier the EPO. The conclusion is remarkable because the Federal Court of Justice is fountain past times the fact finding of the lower courtroom unless in that place are specific doubts regarding the correctness together with completeness of the fact finding (§
529(1) Civil Procedure Act). The Court held that in that place were specific doubts every bit to the credibility of a fundamental witness for the populace prior use, whose testimony was inconsistent amongst that of other witnesses together with established facts. The twist was that the witness had died inwards the meantime together with could non live on questioned again. This, thence the BGH, did non foreclose it from finding the testimony unpersuasive. After it had concluded that populace prior role was non proven, the Court assessed inventive measuring based on the tape earlier it together with found the dependent area matter(s) of the claims to live on inventive.
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| 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 together with that the document failed to bring out all the features of the invention. It together with thence went on to assess novelty over two additional documents, likewise finding the innovation non anticipated, together with assessed inventive measuring inwards a unmarried paragraph, final the plaintiff had failed to demo lack of inventive step. Again the patentee prevailed on appeal.
In the first decision, designated a leading instance (Leitsatzentscheidung) past times the Court, the BGH finds that a fundamental witness lacked credibility together with concludes that the populace prior role which led the Federal Patent Court to invalidate the patent for lack of novelty was non established. The patent at resultant was Nichia's EP 936 682, an important patent concerning white low-cal emitting diodes that has likewise been the dependent area of opposition proceedings earlier the EPO. The conclusion is remarkable because the Federal Court of Justice is fountain past times the fact finding of the lower courtroom unless in that place are specific doubts regarding the correctness together with completeness of the fact finding (§ 529(1) Civil Procedure Act). The Court held that in that place were specific doubts every bit to the credibility of a fundamental witness for the populace prior use, whose testimony was inconsistent amongst that of other witnesses together with established facts. The twist was that the witness had died inwards the meantime together with could non live on questioned again. This, thence the BGH, did non foreclose it from finding the testimony unpersuasive. After it had concluded that populace prior role was non proven, the Court assessed inventive measuring based on the tape earlier it together with found the dependent area matter(s) of the claims to live on inventive.
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