Monday, 12 October 2015

Orientation on the Patent Claim - OLG Düsseldorf Heizkessel mit Brenner

One of the 3 criteria in the German doctrine of equivalence is that the considerations of the person skilled in the art when finding a replacement for the feature of a claim "orient themselves on the teaching of the patent claim".

It is not surprising that this criterion gives rise to discussions as to what it actually means.

The decision 15 U 139/14  "Heizkessel mit Brenner" of the Düsseldorf Upper District Court (OLG Düsseldorf) relates to an appeal against the rejection of a request for preliminary injunction and contains a translation of the criterion into a more handy language. According to the Court, the technical teaching given the patent has to be accepted as justified and may not be questioned in its technical legitimacy upon searching a replacement means with the same technical effect.

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