Munich, October 28, 2019 – The Munich Higher Regional Court (Oberlandesgericht) allowed the negative declaratory judgement brought by Gum-Tech s.r.o against Conradi + Kaiser GmbH. Gum-Tech successfully defended itself against the allegation of patent infringement (judgment of September 19, 2019, file no. 6 U 2558/18).
Gum-Tech is headquartered in Slovakia and produces safety tiles made of recycled rubber granulates. Their products include grass grid tiles that can be used in parks, gardens, campgrounds, and playgrounds. The question was, whether these products infringed the German part of the European patent EP 2 019 169 B1 of the direct competitor Conradi + Kaiser.
In the first instance, the Munich Regional Court I (Landgericht) affirmed the legitimate interest of the action and judged that infringement of the first independent claim did not take place. However, the Court continued on to state that an infringement of the second independent claim was present and, as a result, dismissed the action (file no. 7 O 3773/18).
In the parallel opposition proceedings before the European Patent Office (representative: Müller Schupfner & Partner), the first independent claim was limited in scope, and the second independent claim was revoked (non-final). The Munich Higher Regional Court then, in the second instance, ruled that neither the first (in both the originally filed and the limited versions) nor the second independent claim had been infringed.
“From a legal point of view, it is noteworthy that – as far as we know – for the first time a Higher Regional Court applied the principles regarding the legitimate interest as outlined by the German Federal Supreme Court in the “Schneckenköder” [slug bait] decision (file no. X ZR 62/16),” explained Dr Thomas Huber, the representative of Gum-Tech. “Accordingly, the defendants must decide in future cases, if they wish to defend themselves by means of admissibility with the claim of lacking legitimate interest or by means of the merits with the presence of an infringement.”
An appeal against the non-admission of the further appeal against the decision of the Munich Higher Regional Court was filed (file no. X ZR 92/19).