The German Federal Supreme Court decides about „inescapable trap“ in a case concerning the German part of a European Patent

In a decision of February 17, 2015 “Wundbehandlungsvorrichtung” (X ZR 161/12) the German Federal Supreme Court had to deal with the German part of a European Patent containing a limiting feature which was not disclosed in the original application. This situation results according to the case law of the European Patent Office regularly in a complete revocation of the patent. The German Federal Supreme Court has already decided concerning German Patents and German Utility Models that – deviating from the case law of the European Patent Office – in some cases the patent can be cured. The decision now extents this case law to German parts of European Patents. The German Federal Patent Court as the first instance did not see a possibility to cure the patent and has revoked it. This decision has now been set aside and the case has been referred back to the German Federal Patent Court.