U.S. + Germany patent update – November 2018

Under German law, once the opposition period for a patent has expired, the only way to invalidate a patent is to start nullity proceedings at the German Federal Patent Court (GFPC). Unlike other jurisdictions, during nullity proceedings in Germany, the patent owner is allowed to defend its patent with the claims as granted or with narrower claims.

Typically, such narrower claims are filed as so-called "auxiliary requests." In nullity proceedings, the patent owner defends the granted claims and clarifies that the auxiliary requests (i.e., narrower claims) should only be reviewed by the GFPC if the GFPC finds the granted claims invalid.

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