German Federal Supreme Court "Cryptosporidium" - nullity of a use claim

In order to eliminate the potential of Cryptosporidium oocysts infection of drinkable water, a patent claim suggested the use of ultraviolet light in certain doses, and within a certain wavelength range. The state of the art has shown in principle to treat water with ultraviolet light with a wavelength and in doses as claimed, however, for another purpose. But the potential for Cryptosporidium oocysts infection would have been mandatorily eliminated. The patent Court has revoked the patent. The German Federal Supreme Court did not accept that, and has ruled in the decision “Cryptosporidium” (X ZR 99/14 of February, 23 2017) that the patent is maintained as granted. In the ruling it reads: “a) A use meets the novelty requirement if the protected teaching shows an additional possibility of use, which can be differentiated from the known possibilities of use in the state of the art. b) Consequently, there is only room for a novelty destroying anticipation if the skilled person has used the known item intentionally for the protected use.”