“Aminopyridine”
摘要
For the assessment of whether the ground for refusal under Sec. 81(2), first sentence, Patent Act applies, account is to be taken of the time of the decision on the action, not the time when the action was filed. In this context, changes that only occurred in the course of the appeal proceedings must also be taken into account (confirmation of decision of the Federal Supreme Court, 19 April 2011 – X ZR 124/10, GRUR 2011, 848 para. 17 – Mautberechnung). The cause of action ceases to exist if the European Patent Office has decided that the patent is maintained with an amended version of its claims and this decision can no longer be appealed. In this constellation, an action for revocation is only admissible to the extent that it is aimed at eliminating the legal validity of the patent to a greater extent than can be expected according to the binding decision of the European Patent Office.