Law applied:
GebrMG Sec. 13 (3); PatG Sec. 12
Summary:
a. The modification of a pre-used object, which realizes all features of an independent claim of protection of the suit utility model, may be covered by a right of prior use even if the pre-used object did not exhibit further features, which are mandatory according to the suit utility model.
b. This applies irrespective of whether the infringement action is merely based on a version of an independent protective claim which is restricted in the aforementioned manner or whether the utility model has been restricted accordingly in cancellation proceedings.
BGH, Judgment of June 20, 2023 - X ZR 61/21
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