Law applied:
Code of Civil Procedure (ZPO) Sec. 567 (1) No. 2; Patent Law Sec. 140c (1) 3rd sentence, (3) 2nd sentence; GebrMG Sec. 24c (1) 3rd sentence, (3) 2nd sentence
Summary:
- Pursuant to Sec. 567 (1) No. 2 Code of Civil Procedure (ZPO), an immediate appeal is admissible against a decision on the disclosure to the claimant of an expert opinion prepared in independent evidence proceedings on the basis of an inspection ordered under Sec. 140c (3) Patent Law or Sec. 24c (3) GebrMG. This applies not only if the request for surrender is rejected, but also if the court of first instance orders surrender although the respondent has opposed this by asserting confidentiality interests.
- For the decision on the release of the expert opinion, the question of how probable the existence of claims for infringement of the property right is is only relevant if the respondent has demonstrated justified interests in secrecy (supplement to Federal Supreme Court (BGH), decision of November 16, 2009 - X ZB 37/08, BGHZ 183, 153 = GRUR 2010, 318 - Lichtbogenschnürung).
Federal Supreme Court (BGH), Decision of August 1, 2023 - X ZB 9/21
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