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Negative statements in patent applications

01-06-2010

Jens Künzel

A recent decision of Germany’s Federal Supreme Court in Fischdosendeckel (Fish Tin Cap) concerns the somewhat strange case of negative statements about a competitor’s products in the specification of a patent.

A recent decision of Germany’s Federal Supreme Court in Fischdosendeckel (Fish Tin Cap) concerns the somewhat strange case of negative statements about a competitor’s products in the specification of a patent.

It is, of course, common to describe the prior art and its downsides and disadvantages in the specification of a patent. This is one of the indispensable elements of a patent specification, because the technical problem and its solution may not be described and disclosed with the required clarity if the disadvantages of the prior art are not expressly mentioned.

The prior art does not only consist of prior patent documents, but also of products that were published and put on the market before the patent filing. It is therefore not unusual for a competitor’s product to be mentioned in a patent specification. Negative statements about its functions and/or constructive details are also common.


Germany, patents, negative, statements, specifications,

WIPR

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