Kraftfahrzeugkarosserie, German Federal Court of Justice, 18 February 2010, File No. Xa ZR 52/08, with thanks to Bernhard Arnold, Arnold-Ruess
Depicting an element in a drawing which is referred to in the description or the patent claims can be sufficient to disclose an element as being part of the invention. The relevant test is whether the construction according to the elements of the invention taking into account the overall disclosure in the view of skilled man appears as a possible embodiment of the invention according to the patent application.
The Federal Court of Justice decided that patent claims, description and drawings of the patent application documents are measures of disclosure of equal relevance. The court had taken a different view under the old patent regime in force until 1980, but now confirmed that the old approach is no longer valid. Claimant had argued that one element of the invention, which defendant had added during the proceedings to save the patent, was not sufficiently disclosed because the function of the element was not mentioned in the description or the claims. The court found that the skilled man understood the function from seeing the drawing alone, in which the element was depicted.
Read the judgment (in German) here.
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