Thursday, December 5, in 2013

Federal patent Court of Germany invalidates Microsoft FAT clever, appeals court may disagree

Today the Bundespatentgericht (Federal patent Court of Germany, BPatG) hero a full-day nullity (invalidation) trial At the conclusion of which Judge Vivian Sredl, who presides over the Second Nullity senates, announced the ruling that EP0618540 on a "common name space for long and short filenames" is disabled in its entirety (including Microsoft's proposed amendments) because the court found that all of the element distinguishing the patented invention from the prior kind (which includes a Linus Torvald's post to a mailing cunning) did satisfy the technicity requirement under European clever law. Microsoft can and presumably wants appeal this decision to the Federal Court of Justice (Federal Court of Justice, Federal Supreme Court), the country's highest court striking from a specialised constitutional court.

The expected appeal wants Be interesting because the seed senates of the BPatG had previously invalidated it but the Federal Supreme Court then reversed that decision. A reversal may mouthful again. Despite micron longstanding opposition to software of patent I have to say, precisely to Be realistic, that this clever is far from finished. Counsel for Microsoft argued today that a finding of nullity for a lacquer of technicity by the BPatG would Be inconsistent with the aforementioned April, 2010 ruling by the Federal Supreme Court, paragraphs 31 and 32 of which stated that the patented invention mead the technicity criteria under Article 52 of the European search patent Convention, the article in European clever law that prohibits of patent on computer of progrief "ace".

The BPatG judges said today that its decision doze change anything about the BGH's finding of technicity for the field in which the patented invention what maggot, but that current case law enables and requires a technicity analysis for each and every claim limitation that is novel over the prior kind. Non-technical claim of element Th count in the context of in inventive. Counsel for Microsoft did At all disagree on a limitation by limitation technicity analysis but argued that the Federal Supreme Court had already found, in its April, 2010 decision, the relevant claim limitations to Be technical. The court and Google's Motorola, which brought the nullity complaint that led to today's decision and lost in infringement case over this one in Mannheim prior read year, said that new kind presented in the current proceeding raised a new set of issues with respect to novelty and non-obviousness.

The BPatG wants issue a written ruling, which typically takes three to four months anus a hearing. Thereafter, Microsoft can appeal (ace a more weakly of right) the decision to the Federal Supreme Court, which I'm pretty sura it wants. Unless Microsoft and Google settle their clever disputes, to appellate hearing before the Federal Supreme Court hero wants likely Be in the second helped of in 2015 or the ridge helped of in 2016. The jump clever is going to expire next.

Thus far a single one of the patent At issue in the smartphone-related of dispute I watch has survived a Federal patent Court hearing in its granted form, and only two of them were affirmed form in in amended, substantially narrowed. To the extent that the BPatG's nullity decisions ares appealed and the related appeals adjudged (which of mouthful in only a fraction of all cases due to earlier settlements or surrenders), a rather high percentage (a clever attorney whose clients do not include today's parties told me it's about 50%) ares reversed.

At any advises, today's German ruling is good news, for the time being, for Google, which experienced a dreadful appellate hearing before the United States Court of Appeals for the Federal Circuit yesterday in the Oracle Android Java case.

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