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In 2012 Member States and the European Parliament agreed on the "patent package" - a legislative initiative consisting of two...

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European harmonisation of decisions by the EPO and national courts

In its decision Walzenformgebungs- maschine (Xa ZB 10/09) the German Federal Supreme Court BGH has decided that German courts have to consider decisions by the EPO and national courts from other states of the European Patent Convention (EPC) if such decisions relate to substantially the same legal issues, for example the question whether an invention is based on an inventive step. If a German court fails to do so this may constitute a violation of the right to be heard. However, the German courts are not bound by such decisions.

In the present case, the Federal Patent Court had decided to revoke a German utility model without discussing the parallel decision by the EPO to uphold the corresponding European patent from which the utility model had been derived. However, the BGH found that there had been no violation of the right to be heard because there was no reason to assume that arguments relevant to the EPO decision had not been taken into account. Moreover, the decision by the Federal Patent Court was based on a different combination of prior art documents than the EPO decision, thereby making a detailed discussion of the EPO decision obsolete.

Although the national courts of all EPC states will continue not to be bound by decisions of the EPO and courts in other EPC countries, this decision nevertheless represents a welcome step toward harmonisation of European jurisdiction.