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Assessment of the legal validity of a patent granted with third-party objections (Düsseldorf Court of Appeal (OLG))

Düsseldorf Court of Appeal (OLG), Judgment of August 3, 2023 – 2 U 42/23

Decision Keyword:

RRMS-Therapy

Law applied:

EPC Art. 64 (1)

German Patent Act (PatG) Sections 139 I, 140 a I, IV

German Code of Civil Procedure (ZPO) Sections 935, 940;

Summary: (Machine Translation)

  1. An adversarial decision on legal validity of the patent is not required if the decision to grant the patent has been taken in consideration of third-party objections. This applies in particular if the patent was granted by the TB-EPO or the Federal Patent Court (BPatG) in appeal proceedings.
  2. The dispensability of an opposition or nullity decision also applies if certain publications or third-party objections were no longer admitted and considered in the appeal instance for reasons of delay.
  3. A generics case suspending the contradictory legal validity decision also exists if generic products were therefore lawfully on the market during a transitional phase and have led to a certain price erosion, because the patent grant was only issued following a legal remedy by the applicant, the existing marketing protection had already expired before the appeal decision, but the generics company was aware of the forthcoming patent grant before the first marketing.
  4. If the injunction patent has come about in the appeal proceedings by dealing with third-party objections, the refusal of a preliminary injunction is generally only appropriate under those conditions under which the infringement court can deviate from a positive decision on the legal validity (irrefutability, promising new attack).

Düsseldorf Court of Appeal, Judgment of August 3, 2023 – 2 U 42/23 –

Download Judgment (machine translation)

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