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. 

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.

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.