Decision keyword:
Amount in dispute for nullity VII
Law applied:
GKG § 51 (1), § 32 (1) sentence 2
Summary:
a) In patent nullity proceedings, it is generally reasonable to set the value in dispute based on the fair market value of the patent at the time the action is brought or the appeal is lodged, plus the amount of damages incurred up to that point (confirmed by BGH, decision of October 11, 1956 - I ZR 28/55, GRUR 1957, 79 - Amount in dispute; decision of December 14, 2021 - X ZR 26/20, GRUR 2022, 432 marginal no. 9 - Amount in dispute in nullity proceedings IV). The relevant value is generally determined on the basis of the amount in dispute in pending infringement proceedings plus a surcharge of 25% (confirmed by Federal Supreme Court decision of March 11, 2025 - X ZR 114/22, GRUR 2025, 607 - Nichtigkeitsstreitwert VI).
b) If the contested patent had already expired at the time the action was brought or the appeal was lodged, the value in dispute for the instance concerned is to be assessed according to the interest of the respective plaintiff (supplement to Federal Supreme Court, decision of December 18, 1990 - X ZB 3/90, Mitt. 1991, 159, juris para. 3 - Unterteilungsfahne).
Federal Supreme Court, decision of June 17, 2025 - X ZR 78/24
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