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  • Gottfried Schüll

Verdict of the FCJ concerning the rules for examination for the FPC

The FPC (BPatG) is neither obliged nor entitled to check the relevance of the state of the art that was submitted by the nullity plaintiff without comment.

This judgment of the German Federal Court of Justice (Bundesgerichtshof) in 2013 put a stop to the practice of nullity plaintiffs of submitting a large number of documents relating to the state of the art without comment. This practice had led to an overload of the FPC on the basis of misunderstood rules for examination. The German Federal Patent Court (Bundespatentgericht) had applied the assessment criteria from the granting procedure and checked every document submitted for relevance. It was established that this is neither necessary nor permissible in the nullity proceedings. The nullity plaintiff must present the relevance of each document and the relevance of this presentation only has to be examined.

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