Facts
The present case concerns an appeal against a judgment of the Commercial Court, which assessed the issue of inventive step of a prior patent. The defendants relied on the Patent Act in the version of 1976, according to which an invention is not patentable if it results in an obvious manner from the state of the art. However, the Federal Court made it clear that the old law continues to apply to prior patents, as the transitional provisions of the Patent Act of 1976 only apply to new patent grants, but not to the assessment of the grounds for nullity of prior patents.
Considerations
The Federal Court stated that the wording of Art. 26 No. 1 of the old Patent Act (aPatG) is contrary to a differentiation between the catalogue of grounds for nullity and the definition of the invention in Art. 1 aPatG. Accordingly, the requirements of Art. 1 aPatG remain decisive for the assessment of the inventive step of prior patents.
Although the revision of the Patent Act of 1976 was intended to mitigate the requirements for inventive step in order to achieve harmonization with European patent law, it was expressly…