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No protection of secrecy for information to be tenor "dispenser part" (Düsseldorf Higher Regional Court)

Higher Regional Court (OLG) Düsseldorf, judgment of 14 November 2024 - 2 U 17/24

Decision keyword:

Dispenser part

Law applied:

European Patent Convention (EPC) Art. 64 para. 1, para. 3, Art. 69 para. 1 

German Patent Act (PatG) Sections 9, 14, 139 para. 1 and 2, Section 140a para. 3, Section 140b para. 1 and 3 

German Civil Code (BGB) Sections 242, 259 

Summary: 

  1. The required functional consideration must not lead to the content of spatially and physically defined features being reduced to mere function and the feature being interpreted in a way that is no longer consistent with the spatial and physical design of the feature. However, this presupposes that a term used in the claim to describe the spatial and physical design of the subject matter of the invention has such a clear meaning or content that any design which deviates from this - even if it is also suitable for fulfilling the technical function of the feature - is to be regarded as not corresponding to the literal meaning.
  2. The claim for surrender of the infringer's profit also includes additional transactions which do not constitute an act of use within the meaning of Section 9 PatG or Section 10 PatG, but whose conclusion is causally related to patent infringing acts and has a sufficient connection to the infringing object. Such a sufficient connection exists in any case in the case of transactions concerning consumables intended for use with an infringing device.  
  3. For the existence of an (accessory) claim for information and accounting pursuant to Sections 242, 259 German Civil Code (BGB) in relation to transactions concerning consumables, it is sufficient that these transactions can result in a contribution to the infringer's profit.
  4. Sections 16 and 19 of German Trade Secrets Act (GeschGehG) do not apply to the tenor of the patent infringer's obligation to provide information and render accounts regarding his unauthorized acts of use. Nor can a claim to procedural secrecy protection be based on the grounds that the information to be provided is subject to a purpose limitation resulting from an obligation to provide information. 

Higher Regional Court (OLG) Düsseldorf, judgment of 14 November 2024 - 2 U 17/24 -

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