In order to render an invention patentable, the essential features of the invention must not be accessible for the public prior to the date of application. Such a lack of novelty comprises oral, written and obvious previous use.

The process on which the decision of the Federal Court of Justice (BGH) is based is about an action of nullity against a patent which is targeted on a further development of a crimping tool, e.g. a tool directed on the installation of piping systems.

In addition to other grounds the complainant refers to an obvious previous use and therewith a disclosure of the subject-matter of claim 1 causing a lack of novelty. Therefore, the complainant quotes a communication between a manufacturer and a distributor of such crimping tools about a potential development and distribution of a to be developed crimping tool according to the granted patent. Further, the complainant states that during the distribution of an existing crimping tool such a development was indicated or could be indicated at least on demand of customers.

In the decision the BGH clarifies that a communication between a developer and a distributor, which is particularly no offer to the public, does not necessarily create a state of the art, particularly since a further processing of the content of the offer to any third party is not obvious. Due to the BGH this is justified by the fact that both communication partners possess a, particularly economic, interest to keep the content of the communication confidential. Concerning the second aspect of the argumentation of the complainant the BGH states that a pure willingness of the disclosure of information without actual evidence of a communication is not sufficient to prove an obvious previous use.