Tuesday, 20 January 2015

Patent Infringement on Trade Fair?

The OLG Düsseldorf has decided that exhibiting infringing products on a specialist trade fair is "offering for sale" in the sense of § 9 S. 2 Nr. 1, 2. Alt. PatG unless the fair is a pure "performance show" (Leistungsschau).

This ruling is contrary to an earlier ruling by the  Mannheim District Court (29.10.2010, 7 O 214/10, see here) which judged that the mere fact of exhibiting a product infringing a patent was not sufficient to prove the alleged infringer's intention to sell the product in Germany with a degree of certainty sufficient to grant a preliminary injunction.

The BGH had decided on the question of trademark infringements by exhibiting on trade fairs in the decision Pralinenform II and in relation to a risk of first offence in an unfair competition case here.

For more background information see here

Wednesday, 14 January 2015

T2563/12 - Structural association sizes

The decision T2563/12 is a further example of the fatal consequences of using terms with no well-recognized meaning in the relevant technical field in a claim without defining them in the specification.

The requests were directed to a concrete delivery system comprising a substrate with a surface comprising a metal/metal alloy, wherein at least a portion of said alloy has "structural association sizes" in the range of one or more of the following:
  • (i) 5 Angstroms to 100 Angstroms
  • (ii) 10 to 150 nm, or
  • (iii) 150 to 1,000 nm
The board concurred with the Examining division in that the term "structural association sizes" does not have a well-recognized meaning and is further not defined in the specification such that it remains unclear.

In the absence of any disclosure suitable for clarifying the claim without violating Art. 123(2) EPC the application was doomed to fail.

Monday, 12 January 2015

Damages for Unjustified Preliminary Order

The decision I ZR 249/12 of the BGH deals with the claim to damages of a party having observed a preliminary order which finally turned out to be unjustified.

The Hamburg district court had issued a preliminary injunction ordering to stop selling trousers allegedly infringing rights in designer jeans called "Nero". The injunction was issued on June 9, 2006, a simple copy of the injunction was sent to the defendant on June 12, 2006 by the plaintiff and the defendant stopped producing the trousers on June 20, 2006. A formal notification took place on July 6, 2006.

The preliminary injunction was initially confirmed in the procedure on the merits but then withdrawn by the alleged right-holder in the course of the oral proceedings on March 14, 2007. The final decision on non-infringement was issued on December 19, 2007.

The dispute went on for several years and through various instances including a decision of the BGH in 2009. The defendant never resumed the production of his version of the "Nero" jeans but requested roughly 0.5 Million Euros consequential damages for the lost sales between June 2006 and December 2007.

The BGH ruled that the claim to damages is to be limited to the period in which the preliminary injunction was in legal force, i.e. from July 6, 2006 to March 14, 2007 and that the fact that the order was observed before or after this period was not a compulsory consequence of the preliminary order such that the claim to damages for the lost sales is limited to the above period.

Thursday, 18 December 2014

Communiqué on 142 meeting on EPO Administrative council

The report on the meeting of the Administrative Council of the EPO has now been published here as follows:

142nd meeting of the Administrative Council of the European Patent Organisation (Munich, 10 and 11 December 2014)

The Administrative Council held its 142nd meeting in Munich on 10 and 11 December 2014 with Jesper Kongstad, Director General of the Danish Patent Office, in the chair.

After the Chairman's report on the last meetings of the Board of the Administrative Council, the President of the European Patent Office, Benoît Battistelli, presented his activities report. The Council expressed its clear satisfaction.

The Council then exchanged information on strategic matters within the Organisation and on the social climate and addressed a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC, reported separately on this website.

Further, the Council proceeded with a series of appointments and re-appointments to positions in the boards of appeal.

Later, the Council heard status reports on the Unitary patent and related developments as well as on substantive patent law harmonisation.

Lastly, the Council adopted a reform of the career system as well as the draft budget for 2015.

Council Secretariat
No surprise so far. The rumors that the new career system has been adopted are confirmed. The new career system is supposed reduce (or entirely eliminate) the effect of seniority on salary increases and put a strong focus on productivity. According to a letter published via the FOSS blog run by Florian Müller, this is likely to affect the quality of the patents delivered by the EPO.

This blogger thinks that a more incentive-based salary system is a very good idea as long as the quality of the work remains an essential factor. However, the quality of the work of patent examiners is difficult to quantify insofar as the substantial part thereof is concerned. Quality management systems tend to put an excessive weight on factors which can be easily "measured" and to neglect other, more  relevant factors. Is the recent trend showing an increasing number of EPO examination procedures limited to purely formal issues without ever entering into a deeper a discussion on the technical merits of the invention a result of an unbalanced incentive system?

Wednesday, 17 December 2014

Dangers of Copy & Paste

The fist embodiment
In the case T395/13, the technical board of appeal of the EPO had to deal with a case where the appellant - who had not participated in the oral proceedings of the 1st instance -  argued that the decision was not sufficiently reasoned.

According to the appellant,
Sections 11.4 and 11.5 of the decision under appeal did not relate to the present case, but could instead be seen to have been copied from the decision in one of the parallel cases involving the same parties and opposition division (specifically the opposition against European patent No. XXXXXXXXX). The document referred to in those sections as E2 was clearly not that identified as E2 in the section "Facts and submissions" in the decision under appeal, but was instead the document now referred to as E2A. That these sections were not relevant to the present case was also apparent from the fact that it used terminology (specifically the expression "local client printer module") which appeared only in the parallel case, not in this one.
 The board adds that:
It is also clear that ..... sections 11.4 and 11.5 are exact copies of the corresponding sections of the decision taken by the same opposition division in the parallel opposition procedure against the European patent No. XXXXXXX, including even the repetition of mistakes (such as "The fist embodiment" in section 11.5.2). (emphasis added, cf. reasons, item 2.1)
The decision was set aside and remitted to the 1st instance.

Friday, 12 December 2014

EPO - News from the Administrative Council

The Administrative council has published a "Communique on decisions taken by the Administrative Council at its 142nd meeting concerning senior employees and appointments and reappointments to the Boards of Appeal" as follows:

The Administrative Council of the European Patent Organisation held its 142nd meeting in Munich on 10 and 11 December 2014 under the chairmanship of Jesper KONGSTAD (DK).

The Council addressed a number of points concerning senior employees and the Boards of Appeal. Specifically, the Council addressed disciplinary arrangements applicable to senior employees appointed by the Council under Article 11 (1)(2)(3) EPC and, noting its obligations under Article 11(4) EPC, agreed to set up a Council Disciplinary Committee.

The Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence.

The Council also made four re-appointments of members of the Enlarged Board of Appeal and Chairmen and legally qualified members of the of Boards of Appeal pursuant to Art 11(3) EPC, as well as a total of twelve appointments and re-appointments of legally qualified members of the Enlarged Board of Appeal pursuant to Art 11(5) EPC.

On a proposal from the President of the Office, the Council addressed and carefully considered a particular issue concerning alleged misconduct by a Council appointee under Article 11 (3) EPC. As a precautionary and conservative measure without anticipating any further steps which may ensue, the Council unanimously decided to suspend the person concerned from active duty on full salary until 31 March 2015. The Council requested the investigation to be completed as soon as possible, in order to allow it to decide on the next steps. The Council expressed its concern at an incident unique in the history of EPO.

Details of the appointments and reappointments as well as of other decisions taken by the Council at this meeting will be published separately.

Council Secretariat
 The setup of a council disciplinary committee is a step which serves to ensure the separation of powers. However, it is to be noted that the main concerns of the demonstrating employees (new career plans, internal disciplinary regime for employees other than those appointed by the AC) are not at all addressed.

This blogger wonders whether the "senior employees" other than the members of the boards of appeal (the employees appointed by the Council under Article 11 (1)(2) EPC are the president and the vice president(s)) are mentioned only for the sake of completeness or whether this might indicate that any sort of investigations with regard to the activities of these persons have been discussed or are on the first schedule of the new council disciplinary committee?

Wednesday, 10 December 2014

Wind of Change at the EPO?

About 1500 or 1600 individuals (according to the organizers) including EPO employees, sympathizing professional representatives, curious bloggers and chimeras of these categories have demonstrated in front of the EPO's Isar building today, where the meeting of the Administrative Council was about to take place.

The EPO management contributed to the event by calling the police to make sure that the demonstrators did not enter the EPO premises but rather stayed on the walkway.

Representatives of the staff committee made various proposals on how to make sure that the fundamental human rights including the freedom of speech and the guarantee of judicial review are respected. One proposal was to establish an independent committee reviewing the managerial decisions for this purpose, the other one was that the EPC should access the European Council.

For more background information, see here and here.
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