Friday, 18 March 2011

Entitlement to use a patent does not foreclose the right to file an oppstion

The federal supreme court has decided in the case X ZB 33/08 (Deformationsfeder) that an  to the inventor's institution has the right to file an opposition against this patent even if the inventor has made an appointment with the applicant granting an entitlement of use for this institution.

The appointment does not imply a no-challenge obligation binding the institution as a third party such that the filing of an opposition does not in general violate the principle of good faith. This finding could change if it would turn out that the institution has functioned as a straw-man for the inventor who is, in general, not entitled to file an opposition against his invention.

The applicability of this reasoning to EPC opposions is not immediate. Interesting points arise from a comparison of this decision with G03/97 and OJ EPO 1992, 747, where the Technical/Enlarged Board of appeal emphasizes that contractual claims are in general subject to national jurisdiction.

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