The German Supreme Court (BGH) in its recent Siemens application decision[1]will give software patent critics new ammunition to oppose IPRs for software patents. The decision regarding computer-implemented inventions seems to tear down all common (German) barriers for software patents. From the critics point of view it further monopolizes software and computer products. However the decision just settles the long-lasting dispute between the European Patent Office (EPO) and the German Supreme Court about the specific conditions...

Netherlands’  The Hague District Court Orange-Book decision brings up again the discussion about the compulsory licensing defense and the role of antitrust in patent infringement proceedings. Opposing’s Germany highest court the Dutch Court denies the possibility of responding with a compulsory licensing defense in a patent infringement proceeding. How damaging is it that two major patent courts in Europe differ on such important issues? After all, we are supposed to have a harmonized European legal order in patent...

In a combined court case between Philips and SK Kassetten regarding CD- and DVD-technology (CD-R and DVD+R disks), the District Court of  The Hague (Netherlands) ruled in favor of Philips, in a case that may revive the discussion about essential patents and competition law defenses (i.e. license under FRAND[1] terms). In our earlier blog we reported on the Orange-Book decision of the German Federal Supreme Court (of 6 May 2009), in which it affirmed the option for the defendant to raise a competition or antitrust …

Part of any smart patent litigation strategy is to seek the right venue. This is true for Europe as well as for the US. Among practitioners it is known that Texas is a preferred venue for patent litigation in the US, as the judges are assumed to be patentee friendly and, important, not inclined to immediately bow to defendant’s strategies to unduly complicate and manipulate litigation by throwing in  litigation tactics with the (sole) intention to complicate the litigation, so as to gain time and to force the plaintiff...

Is “independent invention” a cure against trolls in that it can be argued that infringement cannot be established in case of an “independent invention”? No it is not. A  lot of confusion, misunderstandings, half-truths, nonsensical quasi-lawerly talk exists around the term “independent invention“. The term is often “spittered” about as means against patent infringement actions by NPEs or patent trolls, but has no basis in patent law and lacks a common understanding and agreement on what it means...

Lately patent infringing issues arising from implementing standard compliant products are catching the news media, among which in Europe the decision in Orange-Book-Standard by the German Bundesgerichthof (BGH). In the US Nokia sued Apple for producing it top selling iPhone compliant with the telecommunication standards GSM, UMTS and the networking standard WIFI, alleging 10 Nokia patents infringed. While these patents have been licensed by 40 other companies, including all major vendors of mobile devices, only Apple has refused...

As of 1st October we see a few but substantial changes in German patent procedural law. Let’s pick the most interesting. Considering the pre-eminent position of Germany as a favourable patent jurisdiction in Europe its no wonder the German Federal Court of Justice (Bundesgerichtshof, “BGH”) was flooded with patent invalidity cases (roughly 200 pending cases for 2009 with an estimated duration 4 to 5 years each). Many in and outside Germany agree this time frame must be lowered to let Germany prevail as a jurisdiction of...

The recent German Federal Supreme Court ruling Orange-Book-Standard (BGH, 5/6/2009 – KZR 39/06) seems to be a strong attack on one of the core features of intellectual property rights: the provision of an injunctive relief in (patent) infringement proceedings. In the context of standardized technology the Federal Supreme Court concludes that an injunctive relief is exposed to the widely known “competition law defence” under special circumstances. It may result in Germany being a NPE walhalla. However, there is light at...

When reading this month’s issue of IAM magazine (nr. 34), we came across a remark allegedly made by a senior IP executive at a major high-tech company, (“The patent transaction market at a crossroads“) asking himself “how can you justify buying patents when you are laying people off” .  A rather amazing statement from the mouth of someone who should know better. Two issues are being put in the equation here that really have little to do with each other. In recession times, when demand is low, companies...

The Düsseldorf Appeal Court sets new standards in enforcement of patents of pharmaceutical companies against generic manufacturers by granting a preliminary injunction although the patent has been invalidated in first instance by the Federal Patent Court, in Germany the exclusive court having jurisdiction in patent validity disputes. The case concerns a patent of Eli Lilly (EP 0 454 436, for Lilly’s product Zyprexa) which was declared invalid by the Federal Patent Court in first instance by decision of 4 June 2007. Eli...

In our blog: “Do Not Blame Patent Trolls” of February 2, we touched upon a new player in the patent arena in Europe, IP-Com in Germany. Since then the debate has heated up whether NPEs (Non Practicing Entities) have reached Europe. They did (actually a while ago). In a Dow Jones Newswire, hot from the press, Stuart Weinberg reports on the background of the patents IP-Com bought from Bosch to subsequently assert those against Nokia in a German court. …

Judge Kühnen, the wel known patent judge in the reginal District court of Düsseldorf for patent litigation, has recently been appointed as the new chairman of the Patent Division at the Düsseldorf Appeal Court (Oberlandesgericht). He succeeds Judge Steinacker, who retires after many years as the chairman of the court.The Düsseldorf courts for patent litigation are the most popular patent trial forums for patentees in Europe. Just the regional court has about 500 cases a year, which is more than anywhere else in Europe. It...

In our October 1 blog “Is Patent Exhaustion The Big New Thing?” we referred to the “exhaustion” argument as a pretty powerful tool for Nokia against Qualcomm in their negotiations on a continuation of the CDMA/WCDMA license.Nokia has not come very far in Europe with this argument. This week in the UK the trial between the two started before Mr. Justice Floyd, likely to last 3 weeks. On October 23 , the Landgericht Mannheim in Germany dismissed Nokia’s claim that Qualcomm’s patent rights were “exhausted”. Nokia’s...

On Wednesday, 31 October 2007, the Federal Patent Court (FPC) in Germany invalidated Pfizer’s Lipitor Patent in a first instance decision. This crucial decision for pharmaceutical companies contains some importantaspects regarding the patentability of secondary patents in Germany.BackgroundThe parties of the invalidity proceedings have not been published by the FPC, but it is known in the market that the generic drug makers Ranbaxy Laboratories Ltd. and Basics GmbH filed the revocation action against Pfizer’s Lipitor Patent...

Today starts, in Munich, a two day Symposium: “The Future of European Patent Jurisdiction” organised by the German Federal Patent Court, in consultation with the Federal Ministry of Justice, The meeting is expected to bring together 200-250 participants from all over Europe who are actively engaged with this issue in their work as judges and lawyers, as members of the business or scientific communities, or as decision-makers in EU Member State governments and the European Commission. Federal Minister of Justice Brigitte Zypries...

Germany’s highest court, the Bundesgerichtshof rendered its decision in the Carvedilol II case. Subject of the decision of the Federal Court of Justice was the validity of a patent claim containing a specific dosage instruction for Carvedilol, a beta blocker indicated in the treatment of congestive heart failure. The patent claim contained detailed instructions regarding the use of carvedilol as follows:“[...]4.1.1. administering a pharmaceutical formulation which contains either 3.125 or 6.25 mg carvedilol per day,4.1.2....

On 26 February 2007, Judge Kühnen, one of the chairmen of the regional court in Düsseldorf for patent litigation, made a speech about legal instruments to obtain evidence in patent infringement cases in Germany. In front of a large attendance of patent experts he stressed that although the IP Enforcement Directive is formally not implemented into German law yet, its application is already ensured by existing provisions in German law.Obtaining evidence in patent disputes is often difficult, especially if the infringing conduct...

In a decision announced on December 5, 2006, the German Federal Patent Court (“Bundespatentgericht”), in a nullity action, has partially revoked the German patent DE 197 56 864 directed to neuronal or glial precursor or stem cells. The Court based its decision on § 2 (3) No. 3 PatG where it is laid down that German patents shall not be granted in respect of biotechnological inventions which concern uses of human embryos for industrial or commercial purposes. Interestingly, the claims of the patent are not directed to such...

The German Federal Supreme Court (Bundesgerichtshof, or “BGH”) ruled on a complex issue: employee’s inventions (German Employees’ Invention Act) in what is now known as the “Haftetikett”-decision. The BGH held that an employer can be liable for damages if an employee cannot register his invention as a patent or utility model in a country because the employer has used (but not registered) the invention there. A former employee of a manufacturer of adhesive labels had, during his employment, invented an adhesive made...

Yes. Actually that’s possible, at least in Germany, correction, at least in Berlin, oops, at least in the “Tiergarten” Municipal Court in Berlin. A tiergarten (“zoo”) it is. We earlier wrote about Sisvel’s attempts to bring Patent Wild West practices into the German Courts. It gets funnier. What happened after Judge Ziegler of the Berlin “Tiergarten” Court declared the action of the Public Prosecutor in the SanDisk seizure case (IFA, Berlin) “illegal”? The day Judge Ziegler was absent from the court, the...