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Bacteria cultivation (Federal Supreme Court)

Federal Supreme Court, Judgment of February 22, 2022 – X ZR 103/19

Law applied:

Art. 64, Art. 69 EPC;

Sec 561 of the Code of Civil Procedure (ZPO);

Sec. 133, Sec. 157, Sec. 177 (1), Sec. 184 of the German Civil Code (BGB)

Summary:

1. The retroactive agreement of an exclusive license is in any case not possible if it results in claims against third parties arising subsequently for the benefit of a contracting party on the basis of infringing acts already concluded. (paras. 63 to 65)

2. An exception to this principle can only be considered insofar as the law attaches retroactive effect to certain facts. Under German law, this includes the possibility of approval. (paras. 68 to 72)

Federal Supreme Court, Judgment of February 22, 2022 – X ZR 103/19 

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