Facts
[S. GmbH] is the proprietor of a European patent for a stacking device. The patent was filed on July 17, 1978, claiming a German priority of August 3, 1977. Prior to this, L. GmbH, also based in Berlin, had delivered a prototype of a stacking device to a company [M.] in Germany on June 20, 1977, which infringed the patent of S. GmbH. [B. AG] in Niedergösgen later acquired such a machine and used it in its operations.
[S. GmbH] brought an action against [B. AG] for patent infringement. The defendant raised the objection that the plaintiff's patent was invalid for lack of novelty. The High Court of the Canton of Solothurn dismissed the action, upholding this objection. The plaintiff has appealed the judgment.
Considerations
The Federal Court confirms the view of the High Court that the plaintiff's invention was made available to the public through the delivery of the prototype to company [M.] on June 20, 1977, and thus lacks novelty. An invention is considered to have been made available to the public if there is a sufficient possibility that experts can become aware of it. This is the case here, as the prototype was delivered to a third party who was not subject to a confidentiality obligation.
The issue is whether the disclosure of the invention pursuant to Art. 55(1)(a) EPC can be considered harmless…