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DSS' patent out of the money in Germany, too

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

Regular IPKat readers will already be familiar with Document Security Systems (DSS), which has been attempting to enforce their European patent (EP 455 750) relating to anti-forgery measures, and in particular against the European Central Bank, who DSS would argue are either already using or at least will want to use their patented technology in banknotes. The ECB has responded by attempting to have the patent revoked in each state in which it is in force. It has, so far, succeeded in the UK (noted here), in France (noted here) and in Austria (not noted), but failed in the first instance in the Netherlands (noted here) and Germany (noted here).

The ECB can claim another (and final) victory in Germany now, the BGH having overturned the decision of the Bundespatentgericht. In its judgment of 8 July 2010, the BGH comes essentially to the same conclusion as the English and Dutch courts, i.e. that the patent as granted contains added matter over the application as originally filed (the grounds for the decision are not yet available; press release here). The judgment is interesting insofar as the BGH has lately mostly overruled decisions of the Bundespatentgericht invalidating patents. Yes, adds Merpel, but mostly if the invalidity was based on lack of inventiveness; this challenge succeeded on other grounds.

As another Kat has noted earlier, these types of disputes involving the same facts in several jurisdictions, with courts coming to opposite conclusions, really are an argument in favour of centralised patent litigation. And, if I may add, sorry, Germans, but taking three years for an appeal (the Bundespatentgericht judgment dates of 27 March 2007) is too long.

Full post as published by IPKat on July 13, 2010 (boomark / email).