Thursday 7 July 2011

Conspiracy Theory - BPatG 3 Ni 25/09

The German Federal Patent Court has partially nullified a patent in a procedure where the patentee had defended the patent in a limited form only and the plaintiff had limited his request to the part of the patent that was not defended anymore.

In such a case, the patent court has a simple job and maintains the patent to the extend to which its validity is undisputed and nullifies the rest - which is not defended anymore. It does so even without substantive examination. So far, this is a fairly boring case.

The interesting part comes now: one of the inventors has filed a third-party observation (labelled "amicus curiae brief" - which sounds somewhat overblown for us germans) arguing that the whole procedure was a hocus-pocus arranged to deprive him of his financial compensation as an employee-inventor. How this?

If a patentee abandons a patent, the german act on employee's invention obliges him to offer the patent to the inventor prior to the abandonment. This is, of course, generally not the case when the patent is nullified. I do not want to make any allegations to the patentee since I do not know any furhter details on the background. However, the very idea is compelling: engage a straw-man for nullifying the patent in order to circumvent the german law on employee's inventions?

The decision mentions that the evidence for abusive behavior is not sufficient and that the dispute between the inventor and his former employer is pending at the civil courts. The patent court has no jurisdiction on the question of the impact of the nullification on the financial compensation of the inventor.

We are looking forward to hear the sequel of this.

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