Generally, everybody can initiate a revocation action against a patent. Only in exceptional cases a revocation action against a patent is inadmissible for reasons pertaining to the person who initiates the action. This is the case if the person initiated a revocation action against the same patent before and that previous revocation action was rejected in a final judgement. This is also the case if the person is obligated towards the patentee to refrain from attacking the patent. An action of a straw-man who initiates the action instead of a third party being hindered to initiate the action is inadmissible, too.
In the actual case a sole shareholder being the CEO of the corporation had initiated a revocation action against the patent. The Federal Patent Court (BPatG) rejected that action. Some time later the corporation initiated a new revocation action. The Federal Patent Court considered the action to be inadmissible. In business life the sole shareholder and the corporation would be one person from a commercial point of view. If the sole shareholder was hindered to initiate a revocation action by the legal force of the first decision the corporation would be hindered, too.
The Federal Court of Justice does not follow this judgement (Decision of November 29, 2011 – X ZR 23/11 – Rohrreinigungsdüse). The legal force of a judgement cannot be extended to third persons based on the principle of good faith. Legal force has to be clearly distinguished from contractual obligations in this respect. Furthermore, this is not a straw-man case since the corporation has an own legal interest in revoking the patent.
This decision may become relevant if after a failed first revocation action new prior art is found that can be cited against the patent.