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20.01.2017

Federal Court of Justice: Medical testing report not a direct process product

A process patent relating to a manufacturing process provides protection for products directly obtained by means of that process, as if it were a product patent covering such products. It is questionable in this regard, if non-physical objects, specifically data, may be a product within this sense.

This question had been answered by the Federal Court of Justice in the affirmative in regard of video data, which were coded according to a patented coding process (judgment of 21/08/2012 – X ZR 33/10 – MPEG-2-Videosignalcodierung). The absence of a physical structure would not be detrimental, because such data may, like physical object, be used indefinitely often.

By invoking this precedent, a medical testing lab tried to enforce the German part of its European patent for an in vitro genetic test against the shipment of test reports to German addressees. These reports were drafted by a competitor as a result of the application of the patented process in the Czech Republic to samples received from Germany. This time, however, the Federal Court of Justice did not award protection (judgment of 27/09/2016 – X ZR 124/15 – Rezeptortyrosinkinase II). First, the reports would lack the capability to be used indefinitely often. Second, such protection would – in contrast to the video data case, where protection was not awarded for the information contents, but for the format – result in protecting the presentation of information as such. Such mere presentation of information is, however, excluded by law from patent protection in general. This statutory exclusion would be by-passed if product protection would be awarded in the case at hand.

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