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Patent: Nullity Action – Judgment in Interrupted Proceedings Due to Insolvency of a Plaintiff

Federal Court of Justice, Judgment of 24 August 2021, Case No. X ZR 59/19 (BPatG) – Oscillating Drive

In the underlying case, the Federal Patent Court had dismissed the nullity actions of four separate plaintiffs against the German part of a European patent (judgment of 26 February 2019, case no. 3 Ni 29/17). All four plaintiffs appealed against this decision to the Federal Court of Justice.

In the current appeal proceedings, insolvency proceedings were opened against one plaintiff. In the absence of a commencement of the proceedings by the insolvency administrator, this plaintiff’s proceedings were interrupted pursuant to § 240 German Code of Civil Procedure.

In the present judgment, the Federal Court of Justice dismissed the appeal of the three other plaintiffs by way of partial judgment and, in addition, ruled that the appeal against the remaining plaintiff could not (yet) be decided due to the interruption of the proceedings.

Following its earlier case law (judgement of 2 February 2016, ref. X ZR 146/13), the Federal Court of Justice explained that, in patent revocation proceedings, thereis in principle a necessary joinder of parties (within the meaning of Sec. 62 German Code of Civil Procedure) because the decision must be issued uniformly against each plaintiff. However, since it is within the discretion of the court to join or separate individual proceedings despite the substantive connection between the actions (cf. Sec. 99 Patent Act in conjunction with Secs. 145, 147 German Code of Civil Procedure), Sec. 62 German Code of Civil Procedure does not preclude a partial judgment after the opening of insolvency proceedings against the assets of one of several plaintiffs. Ultimately, a partial judgment without severance would have no other effects than a final judgment in severed proceedings.

The decision is practical in view of the corresponding handling of future nullity proceedings, in particular with regard to the interests of the plaintiffs, over whose assets no insolvency proceedings have been opened, but also with regard to the interests of the patent proprietor in a timely termination of the already protracted nullity (appeal) proceedings.

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