Conclusion Edition note of a prospectus on making available to the public
In the case of patent nullity file number 4 Ni 71/17 (EP), the 4th Senate (nullity senate) of the Federal Patent Court also dealt with the question of the extent to which an edition note disclosed on a company prospectus provides an indication of public accessibility. As a result, following the oral hearing on 4 June 2019, the 4th Senate ruled that the European patent 2 116 280 is void with effect for the territory of the Federal Republic of Germany to the extent of patent claims 1 to 6. In the patent nullity case, the 4th Senate has drafted a guiding principle which says: "[that] the temporally determined edition note on a company prospectus justifies the principle of experience and prima facie evidence that the prospectus has typically already been completed or at least will be completed immediately and that this is at the same time typically followed by an early printing and distribution or dissemination of the prospectus to the public, at least within a period of more than six months from the date of edition".
The plaintiff asserts that the subject-matter of the patent in dispute has the priority date of 7 August 2001 which is not patentable in accordance with Art. II Sec. 6 (1) No. 1 IntPatÜG, Art. 138 (1) (a) EPC. The plaintiff submits, among other things, a product brochure published by the defendant with an edition note "Edition January 2001" as a justification for this, whereby the plaintiff sees a publication of the product brochure in January 2001, i.e. before the priority date of the patent in dispute. Contrary to the plaintiff's opinion, in the defendant's eyes the edition note "Edition January 2001" does not, however, indicate the publication date of the product brochure.
In the case of patent nullity, the Senate takes the view that the typical course of events for company brochures is the immediate distribution to interested customers (cf. BPatGE 32, 109 = BIPMZ 1991, 349) and, on the basis of this principle of experience, triggers a corresponding prima facie evidence. Accordingly, a date of printing which is long before the filing date of the patent specification in dispute can justify the prima facie evidence to the effect that the document was made available to the public before the filing date. Here the Senate refers further to the BGH judgment of 07. 11. 2017, X ZR 113/15 marginal 22 = MMR 2018, 228, in which the Federal Supreme Court has accepted the corresponding principle for the rate of experience based on a copyright notice.
Although the 4th Senate agrees with the defendant that the date of edition of a printed product cannot be equated with the date of printing, in the eyes of the Senate at least one essentially complete edition of the brochure was available in January 2001, which was immediately made available to the public, at least within a period of more than six months from the date of issue. Nor has the defendant demonstrated the circumstances of an atypical course of events to be seriously considered in order to invalidate the appearance. Against this background, in the opinion of the Senate, the European patent 2 116 280 with effect for the territory of the Federal Republic of Germany is null and void within the scope of patent claims 1 to 6.