The Xa Civil Senate of the Federal Supreme Court, which is responsible for patent law, has ruled on an action for nullity brought by the European Central Bank against a patent relating to a process for producing a forgery-proof document, for example banknotes.
The patent in suit, which has been granted by the European Patent Office with effect for numerous European countries, concerns a method of protecting banknotes, in particular against counterfeiting by means of modern colour copying machines. For this purpose, the banknotes are to be provided with certain structures which produce a so-called moiré pattern during the copying process, which easily exposes the copy as a forgery.
The patent proprietor is litigating against the European Central Bank in several European countries. It claims that the patented teaching is used in the production of euro banknotes. The European Central Bank is defending itself against this with an action for annulment, which must be brought separately in each country for which the patent has been granted. In various countries, including Great Britain and France, the patent has already been declared null and void with legal effect for the respective country. In the Netherlands and Spain, the nullity action was unsuccessful at first instance.
In Germany, the Federal Patent Court, which had jurisdiction at first instance, dismissed the invalidity action. In its opinion, none of the grounds for invalidity put forward by the applicant applied.
The Federal Court of Justice amended the decision of the Federal Patent Court and declared the patent invalid with effect for the Federal Republic of Germany. Similar to the English and French courts and the Austrian Patent Office, it came to the conclusion that the granted version of the patent went beyond the content of the original application.
For the territory of the Federal Republic of Germany, the legal effects of the patent thus ceased to apply retroactively.
Judgment of the BGH of 8 July 2010 - Xa ZR 124/07
Lower court:
Federal Patent Court - Judgment of 27 March 2007 - 1 Ni 5/06 (EU)
Source: Press release of the BGH
Goldberg Attorneys at Law
Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
