LEGAL DECISIONS

15.07.2021: OLG Düsseldorf: Advertising with a patent infringing reference object

This case involved modularly configurable assembly and repair pits that are supplied and assembled.

A patent owner who invoked its protection for an assembly and repair pit in which a water collection channel extends longitudinally along the pit and is covered by a walkway grate sued a supplier of assembly pits. The latter advertised on its company website that it could supply a "complete technical workshop equipment" with such an assembly pit. He also showed a reference project in the installed condition. It was disputed whether only the pit or also ancillary products such as water collection channels and walkway gratings were supplied and installed in the advertised reference project.

The OLG saw in the advertisement with a reference object a comprehensive offer, because gü. potential customers the impression would be aroused to be able to plan and supply an appropriate plant. The court came to the conclusion that the defendant also supplied the water collection channels and the walkway gratings and thus put a patent-infringing assembly pit on the market.

Practical tip:

Often discussed in contentious proceedings is the so-called "indirect patent infringement," in which it must be proven whether the supplier knew or should have known that its products interfered with existing patent protection in connection with a certain mode of operation or in combination with other components.

In this respect, advertising with reference projects must be examined not only to determine whether the impression of a "complete supplier" is created, but also whether this makes it easier for a patent holder to argue "indirect patent infringement".

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