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  • Viering, Jentschura & Partner | Kommunikationskanal
    Urteil vom 30 01 2008 X ZR 107 04 Mitt 2008 268 GRUR 2008 597 599 Betonstraßenfertiger Der Gegenstand der beanspruchten Erfindung muss im Prioritätsdokument identisch offenbart sein es muss sich um dieselbe Erfindung handeln EPA GBK Beschluss vom 31 05 2001 GZ 98 GRUR lnt 2002 80 BGH Urteil vom 14 10 2003 X ZR 4 00 Mitt 2004 69 GRUR 2004 133 135 Elektronische Funktionseinheit Dabei ist die Offenbarung des Gegenstands der ersten Anmeldung nicht auf die dort formulierten Ansprüche beschränkt vielmehr ist dieser aus der Gesamtheit der Anmeldeunterlagen zu ermitteln b Für die Beurteilung der identischen Offenbarung gelten die Prinzipien der Neuheitsprüfung BGH Mitt 2004 69 GRUR 2004 133 135 Elektronische Funktionseinheit Nach der ständigen Rechtsprechung des Senats ist danach erforderlich dass der Fachmann die im Anspruch bezeichnete technische Lehre den Ursprungsunterlagen unmittelbar und eindeutig BGH Urteil vom 11 09 2001 X ZR 168 98 BGHZ 148 383 389 Luftverteiler Urteil vom 08 07 2010 Xa ZR 124 07 Mitt 2010 429 GRUR 2010 910 Rdn 62 Fälschungssicheres Dokument Urteil vom 14 08 2012 X ZR 3 10 Mitt 2013 33 GRUR 2012 1133 Rdn 31 UV unempfindliche Druckplatte als mögliche Ausführungsform der Erfindung entnehmen kann BGH Beschluss vom 11 09 2001 X ZB 18 00 Mitt 2001 556 GRUR 2002 49 51 Drehmomentübertragungseinrichtung Urteil vom 18 02 2010 Xa ZR 52 08 Mitt 2010 305 GRUR 2010 599 Rdn 22 24 Formteil Zu ermitteln ist mithin was der Fachmann der Vorveröffentlichung als den Inhalt der gegebenen allgemeinen Lehre entnimmt BGH Urteil vom 16 12 2008 X ZR 89 07 Mitt 2009 119 BGHZ 179 168 Rdn 25 Olanzapin Maßgeblich ist dabei das Verständnis des Fachmanns zum Zeitpunkt der Einreichung der prioritätsbeanspruchenden Patentanmeldung BGH Mitt 2004 69 GRUR 2004 133 135 Elektronische Funktionseinheit c Das Erfordernis einer

    Original URL path: http://www.vjp.de/office-map/ip-news/2015-january-and-february/kommunikationskanal/ (2016-02-13)
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  • Viering, Jentschura & Partner | An animal related apparatus
    18 of the Reasons the Enlarged Board of Appeal held that The purpose of the appeal procedure inter partes is mainly to give the losing party the possibility of challenging the decision of the Opposition Division on its merits It is thus clear that appeal proceedings aim at challenging a decision In decision G 1 99 points 6 1 and 6 4 of the Reasons the Enlarged Board of Appeal further pointed out that issues outside the subject matter of the decision under appeal are not part of the appeal and that within the limits of what in the subject matter of the decision under appeal adversely affects it it is the appellant who in the notice of appeal determines the extent to which amendment or cancellation of the decision under appeal is requested It follows from this that opposition appeal proceedings are confined to what was the subject matter of the first instance proceedings and therefore that the statement of grounds of appeal should at least discuss this subject matter The need for the above mentioned link is thus not only confirmed but also clarified in that the statement of grounds has to address the reasons for the decision under appeal and not only the result The case law see Case Law of the Boards of Appeal of the European Patent Office 7th edition 2013 IV E 2 6 3 has developed further requirements for a statement of grounds of appeal to be admissible namely that it must specify the legal or factual reasons as to why the impugned decision should be set aside The arguments must be clearly and concisely presented to enable the board and the other party to understand immediately why the decision is alleged to be incorrect and on which facts the appellant bases its arguments without first having to make investigations of their own see in particular decisions T 220 83 OJ EPO 1986 249 and T 145 88 OJ EPO 1991 251 Moreover it is also established case law that grounds sufficient for the admissibility of an appeal must be analysed in detail vis à vis the main reasons given for the contested decision see T 213 85 OJ EPO 1987 482 T 169 89 T 45 92 and T 570 07 In the present case the statement of grounds of appeal submitted by the appellant sets out a reasoned argumentation as to why the patent should be revoked for lack of inventive step based exclusively on the newly filed documents However these submissions do not contain any reference to the reasons for the impugned decision let alone any explanation as to why this decision is incorrect and thus to be set aside The board and the respondent are thus facing an entirely new set of facts albeit based on the same legal ground for opposition Moreover the appellant acknowledged that the appeal was effectively based on new documents only and thus on the assumption that the decision of the opposition division was

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/an-animal-related-apparatus/ (2016-02-13)
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  • Viering, Jentschura & Partner | Display device
    1973 The simplification introduced in Rule 164 1 EPC essentially restricts the opportunity to have multiple inventions searched within the framework of one application to the international phase only As far as the basis for examination is concerned the document goes on to say The EPO believes that the principle should be that examination should only be carried out on inventions covered either by the international search report or by the supplementary search report in line with G 2 92 This does not appear to the Board to be particularly helpful in the present case as it is still not unambiguously clear whether the or is intended to be inclusive or whether it signifies two separate cases The document CA PL 17 06 is not however the only preparatory document relating to Rule 164 EPC If the preparatory documents are to be consulted as suggested by the appellant then clearly the entire legislative history of the provision should be taken into account Rule 164 EPC was further modified in decision CA D 20 09 OJ 12 2009 582 584 following a proposal to the legislator made in document CA 166 09 This modification which entered into force on 1 April 2010 was made to take into account the introduction of the voluntary supplementary international search report in Rule 45bis PCT and the proposal in document CA 57 09 to dispense with the establishment of a supplementary European search report in cases where the EPO has drawn up a supplementary international search report Although these changes are not relevant per se to the present application for which no supplementary international search report was established or even possible the preparatory document CA 166 09 provides further insight into the thinking of the legislator in relation to the general object and purpose of Rule 164 EPC In particular it is noted in point 8 of the document CA 166 09 that in the case of a lack of unity of invention the EPO will only establish a supplementary international search report for the invention first mentioned in the claims Rule 45bis 6 a i PCT In the document CA 91 13 one of the reasons for the proposed amendment to Rule 164 EPC was explained in the following terms Under current Rule 164 1 EPC if the application documents do not comply with the requirement of unity of invention a supplementary European search report is drawn up on those parts of the application which relate to the invention first mentioned in the claims Any further invention can be prosecuted by filing a divisional application only Point 10 emphasis added by the Board Under point 11 of CA 91 13 it is explained that according to the proposed amendment this will no longer be the case which will put Euro PCT users on the same footing as Euro direct users This whole exercise from consultation to final adoption of the amendments leaves no room for doubt that the legislator s own interpretation of the

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/display-device/ (2016-02-13)
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  • Viering, Jentschura & Partner | Real-time processing of biological sample / SEQUENOM
    the subject of the contested decision cannot preclude the application of Article 109 1 EPC 1973 cf T 139 87 point 4 T 47 90 OJ EPO 1991 486 point 6 T 219 93 of 16 September 1993 point 4 T 919 95 point 2 1 second paragraph Thus even if the amendments raise new objections not yet discussed interlocutory revision must be allowed since an applicant should have the right to examination at two instances Moreover objections or remarks made in an obiter dictum of a decision under appeal cannot be taken into account in deciding whether or not to grant interlocutory revision since they are to be regarded as voluntary information to an applicant on the preliminary opinion of the first instance department and therefore do not form part of the grounds for refusal see e g T 1640 06 of 15 June 2007 point II T 726 10 of 6 September 2013 point 9 In this regard the board thus cannot follow the conclusion reached in decision T 1034 11 that the first instance department could regard objections raised in an obiter dictum of the appealed decision as being an integral part of the reasons for refusing an application in the event of interlocutory revision being denied cf T 1034 11 of 30 November 2012 point 5 2 The obligation to grant interlocutory revision in certain well defined circumstances is in principle also clearly reflected in the Guidelines for Examination in the European Patent Office in the applicable version of June 2012 cf E X sections 7 1 and 7 4 However pursuant to Article 20 2 RPBA the board considers it appropriate to point out that there are some inconsistencies between the Guidelines and the established case law as to the interpretation of Article 109 EPC

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/real-time-processing-of-biological-sample-sequenom/ (2016-02-13)
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  • Viering, Jentschura & Partner | Reflective Polarizers having extended red band edge for controlled off axis color
    claimed properties are effectively obtained the claimed properties remain at an abstract or conceptual level Accordingly the issue of inventive step boils down to the question of whether or not the skilled person in view of the available prior art and his her common general knowledge would in an obvious way have envisaged the claimed set of desiderata Citations The only technical feature defining the claimed reflective polarizer in terms of structural limitations is that the polarizer is a multilayer reflective polarizer meaning that the reflective polarizer comprises multiple layers Rather than specifying the concrete nature of the multiple layers by indicating for instance their total number individual thicknesses composition or sequence in a stack of layers the remaining features of claim 1 only give numerical values for particular spectral reflection properties which the polarizer exhibits when subjected to specific illumination and observation conditions These properties of the polarizer are the result of functional interactions between individual layers each layer requiring specific layer characteristics However the claim does not define any concrete measures on how to ensure that the claimed properties are effectively obtained The claimed properties insofar remain at an abstract or conceptual level Therefore these remaining features of

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/reflective-polarizers-having-extended-red-band-edge-for-controlled-off-axis-color/ (2016-02-13)
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  • Viering, Jentschura & Partner | Semiconductor chip assemblies, method of making same and components for same
    examination under Article 123 2 EPC is flatly contradicted The Enlarged Board agrees with the opponent that there is no support under the EPC for the idea expressed by the Board of Appeal in case T 231 89 that there is a mutual relationship between paragraphs 2 and 3 of Article 123 EPC the one to be applied as primary and the other as subsidiary depending on the facts of the individual case This interpretation is not in line with the mandatory character of Article 123 2 EPC as explained by the Enlarged Board in its opinion in case G 3 89 OJ EPO 1993 117 Paragraphs 2 and 3 of Article 123 EPC are mutually independent of each other G 1 93 op cit Reasons point 13 By analogy with the above Article 76 1 EPC and Article 123 3 EPC must be regarded as mutually independent of each other The Board also disagrees with the opponent s view on the manner in which Article 69 1 EPC is to be applied in this respect Article 69 1 EPC states The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims Nevertheless the description and drawings shall be used to interpret the claims Hence in the case of a European patent the extent of the protection conferred is clearly to be determined by the claims of the patent with the description and drawings of the patent being used to interpret the claims The wording of Article 69 1 EPC leaves no room for the opponent s interpretation that Only the description and drawings which comply with the requirements of the EPC and in particular A123 2 and A76 l should be used when considering A69 The importance of Article

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/semiconductor-chip-assemblies-method-of-making-same-and-components-for-same/ (2016-02-13)
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  • Viering, Jentschura & Partner | Antenna coil
    a series of requests which had been filed on 15 May 2009 in accordance with Rule 116 EPC and had been replaced by further amended versions on 17 June 2009 According to Rule 137 3 EPC an examining division has a discretion whether or not to allow amendment of an application at an advanced stage of the examination procedure In the exercise of this discretion an Examining Division is required to consider all relevant factors which arise in a case In particular it must consider both the applicant s interest in obtaining a patent which is legally valid in all of the designated States and the EPO s interest in bringing the examination procedure to a close by the issue of a decision to grant the patent and must balance these interests against one another decision G 7 93 OJ 1994 775 paragraph 2 5 of the Reasons As regards the role of a board of appeal in reviewing the exercise of discretion by an examining division paragraph 2 6 of the Reasons in decision G 7 93 states if an Examining Division has exercised its discretion under Rule 86 3 EPC 1973 Rule 137 3 EPC against an applicant in a particular case and the applicant files an appeal against the way in which such discretion was exercised it is not the function of a Board of Appeal to review all the facts and circumstances of the case as if it were in the place of the first instance department in order to decide whether or not it would have exercised such discretion in the same way as the first instance department If a first instance department is required under the EPC to exercise its discretion in certain circumstances such a department should have a certain degree of freedom

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/antenna-coil/ (2016-02-13)
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  • Viering, Jentschura & Partner | Induction cooktop
    oral proceedings from the board It is generally admitted that based on the same ground of opposition an appellant may develop an entirely fresh case based on new arguments cf Case Law of the Boards of Appeal of the European Patent Office 7th edition 2013 IV E 2 6 5 page 964 The objection of lack of novelty was therefore admitted into the procedure The appellant argued that some of the features of claim 1 are formulated as actions undertaken by the microprocessor e g the microprocessor 18 taking the desired temperature of the cookware or controlling the power transferred to said cookware 20 According to the appellant these features are process features which do not define the claimed device but define solely a device suitable for undertaking or implementing said actions The novelty objection of the appellant sounds to the board rather as a clarity objection Article 84 EPC and clarity is not a ground for opposition Article 100 EPC While it is a common practice to address and correct the unclear features arising from amendments filed by the patent owner during the opposition proceedings potentially unclear features in a claim as granted cannot be amended but need to

    Original URL path: http://www.vjp.de/office-map/ip-news/2014-may/induction-cooktop/ (2016-02-13)
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