EPLAW PATENT BLOG

DE – Fish-bite indicator / invalidity

Posted: June 18th, 2009

Fischbissanzeiger (Fish-bite indicator), invalidity proceedings (inventive step), Federal Supreme Court, Germany, 18 June 2009, Docket No. Xa. ZR 138/05

For examining inventive step the “closest prior art” is not the sole starting point (deviation from the formal approach used by the EPO). Choosing a specific starting point requires a specific justification. In this context, it must be considered that the person skilled in the art attempts to find a better and different solution for a specific purpose. This approach prevents the courts from making an inadmissible hindsight assessment of prior art and urges them to consider all prior art that was actually available at the priority date.


Read the judgment (in German) here.

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