/ Created by Gottfried Schüll

Decision of the FCJ on auxiliary requests and the interest to take legal action in nullity proceedings

In this judgment, the FCJ (BGH) clarifies the requirements for new auxiliary requests in nullity appeal proceedings and for the infringement defendant's legitimate interest to take legal action after expiry of the patent.

Amended auxiliary requests in appeal proceedings are admissible according to this decision of the German Federal Supreme Court (Bundesgerichtshof) in 2020 if the new request differs from a request already filed in the first instance only in that some of the features that were added to the granted version have been deleted.

After the expiration of a patent an infringement action establishes a legitimate legal interest to take legal action for the infringer in a nullity suit with regard to all sub-claims referred back to the claim asserted in the infringement action and also with regard to independent claims which largely coincide in content with regard to an infringement.

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