Family Affairs - BGH X ZR 77/10 "Treppenlift"
Hitherto, the german judicial system had the reputation that it's first instance has the character of being closer to alternative dispute resolution (ADR) than to a real trial. Indeed, the possibilities to file furhter arguments, requests or evidence have been fairly generous as compared to e.g. those of our friends in good old England.
Indeed, the efforts made in the first instance to convice the judge have sometimes been fairly poor because the parties felt that it would be sufficient to get their stuff together when things are getting serious in the 2nd instance.
In an attempt to tighten up the procedure, the general procedural rules (ZPO-Zivilprozessordnung) has been amended as of 2002 and similar amendments have been introduced in §83 and §117 of the patent act (PatG) as of October 2009 for the nullity procedure. In a nutshell, arguments, requests and evidence is considered late if it could have been filed earlier.
Still, some of my colleagues are not yet very used to this and the case-law, in particular in patent matters, is not yet very detailed.
The decision “Treppenlift” BGH X ZR 77/10 is, as far as I know, one of the first decisions where the supreme court (BGH) has overruled the decision of the 2nd instance upper district court which considered a defence argument as being late-filed.
The case at issue had 2 defendants, one of which was a natural person A and the second was a a corporate body B, the manager C of which was married to A. A argued in the 2nd instance that the original inventor of the patent in suit was actually her husband C and that the invention was unlawfully usurpated by the plaintiff.
However, the right to raise the unlawful usurpation as a counterclaim is limited to the injured party C, who was, himself, not party of the infringement procedure and who had transferred the right to enforce the rei-vindication claim to A only after the completion of the 1st instance.
The upper district court found that, given the close relation between C and the defendants, this defence argument could have been filed earlier. After all, C had been personally attending to the procedure, although not as a party but only in his function as a representative of a party.
The BGH found that this reasoning was incorrect because there was no duty to C to transfer his rights at a given time and that A and B could not have argued with the unlawful usurpation prior to this transfer. As a consequence, the late-filing was due to the late completion of this transfer of rights rather than to any negligence of the parties.
In wonder if the denfence that late-filed material had been in the possession of a close relative will work for other cases as well.