German Supreme Court, 17 July 2012, docket no. X ZR 97/11 - "Palettenbehälter II"
The decision “Pallet Container II” deals with the important distinction between the permissible “repair” of a patented product and the impermissible “renewed-manufacturing” of this product. From a practical point of view, the decision addresses the legal boundaries to aftersales competition regarding “wear-and-tear-parts” and consumables (e.g. coffee pads or ink cartridges). As will be detailed below, in the future the “end customer’s perception and understanding” will play an important role in order to decide whether these boundaries are crossed or not.
Whereas in Germany a “repair” of a patented product is considered as its “intended use” and therefore warranted under the principle of exhaustion, the “renewed-manufacturing” is considered as a further commercial exploitation of the patented invention which is only permissible with the patentee’s consent.
The decision “Pallet Container II” deals with the important distinction between the permissible “repair” of a patented product and the impermissible “renewed-manufacturing” of this product. From a practical point of view, the decision addresses the legal boundaries to aftersales competition regarding “wear-and-tear-parts” and consumables (e.g. coffee pads or ink cartridges). As will be detailed below, in the future the “end customer’s perception and understanding” will play an important role in order to decide whether these boundaries are crossed or not.
Whereas in Germany a “repair” of a patented product is considered as its “intended use” and therefore warranted under the principle of exhaustion, the “renewed-manufacturing” is considered as a further commercial exploitation of the patented invention which is only permissible with the patentee’s consent.
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