Thursday 10 November 2011

Rescue Where There Is No Remedy

I feel strangely attracted towards the hopeless cases and was really enthusiast readig this one.

The 35th senate of the Bundespatentgericht (newly responsible for utility models) had issued a cost order obliging the plaintigg to pay the entire costs. The order was not perfectly clear in the question whether it concerns the costs of both instances or only the 2nd instance and the defendant requested a clarifying correction of this point.

The request was granted and the corrected order was issued and the plaintiff immediately requested a withdrawal or re-correction of the correction by arguing that the corrected decision was based on a wrong application of the law.

Unsurprisigly, the senate rejected this request for correction because wrong application of the law does not qualify as an "obvious error" which might be corrected.

Interestingly, the senate interpreted the request as a "remonstrance" (Gegenvorstellung) under §321a ZPO, which is a legal construction wich - accordig to my knowledge - a never been applied in procedures before the Bundespatentgericht before.

Originally, this procedure is a means for self-correction of decisions by the court having issued the decision in cases where no other legal remedy exists and where it turns out that the court had violated the right to be heard such that this violation has an impact on the outcome of the decision.

However, the 35th senate argues that it is equally applicable in cases where no other legal remedy exists and the decision is "tangibly unlawful" (greifbar gesetzeswidrig).

The original decision can be read here.

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