In determining the percentage of the infringer to be issued, has been imparted by the use of the teaching of the invention, regularly is also to be considered, whether and to what extent the design of the invention or the resulting, directly or indirectly related technical or economic benefits for the customers of the infringer had seen or been exposed to them over advertising (following the Supreme Court, Judgment of 24. July 2012 X ZR 51/11, References omitted 194, 194 Rn. 18 ff. Bottle carrier).
DECISION BGH X ZR 130/12 from 3. September 2013 – Cable Lock
Patgan § 139 Abs. 2
…
Der X. Civil Division of the Federal Court on 3. September 2013 Presiding Justice Prof. Dr. Meier-Beck, the judges Dr. Grabinski, Dr. Bacher, Hoffmann and the Judge Schuster
decided:
The applicant's appeal against the refusal of the appeal in the Court's 2. Civil Division of the Court of Dusseldorf 4. October 2012 is rejected.
The applicant shall pay the costs of the appeal proceedings.
The value of the appeals process is to 144.707,12 Set €.
Reasons:
I. The applicant claims as proprietor of members with effect for the Federal Republic of Germany European patent 0 361 155 (Klagepatents) of the Be-defendants jointly and severally damages for patent infringement in the amount of the infringer. The patent in suit relates to the combination of a two wheeler frame-sided cable lock holder with an operationally separable from this Ka-belschloss. The Court of Appeals, as before the district court, the discrimination based on Benut-tion of the invention share of the infringer in the amount of 482.357 €, the defendant by the sales of 1.007.201 € achieved with the violation of the form, with 10% sized and dismissed the complaint further. It has the revision not allowed; here against the applicant's complaint is directed, the other with the revision of the order the defendant to surrender 30% wants to achieve the infringer.
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II. The admissible complaint is unfounded. Neither has the basic meaning Case, still grab the alleging breach of procedure-ground right through complaints or requires otherwise, the development of the law or to ensure equal held that a decision of the Court of Appeals (§ 543 Abs. 2 Set 1 Code of Civil Procedure).
Contrary to what the complaint alleges that the dispute is not the fundamental issue at, if only those features of the invention and justified in the present invention func-tional advantages of the product should be taken into account in determining the amount of the to be issued Verletzerge-winns, which the customer can see before buying and therefore influence the purchasing decisions.
Such a legal rule has not be applied to the Court of Appeal's decision. It has rather run, that fall for the estimation of Kausalan-partly in particular the importance of the weight, which had the technical teaching of the patent in suit for breach form, and adopted in this together-hang, that the invention is merely a detail enhancement of the cable castle and its support and no significant improvements over the prior art ready stelle. It then considers the appeal to be unfounded attack, which teach the other hand,, that the district court as part of its overall balance abstelle also be, whether and to what extent the loading complained the technical design of bicycle lock and bracket proven especially advertising would.
The case law of the Senate is resolved, that is for the determination of the proportion of the infringer be surrendered to determine who-tend in a patent infringement, whether and to what extent is due to the gain on the contracts negotiated by the use of the invention technical characteristics of the product or other significant for the purchase decisions of consumers factors. The amount of profit to be issued by the trial judge is to appreciate all the circumstances of the particular case under assessment (BGH, Judgment of 24. July 2013
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X ZR 51/11, References omitted 194, 194 Rn. 18 ff. Bottle carrier). With these principles, which is about the same time as the publication of the decision “Bottle carrier” announced appeal judgment in accordance. It is therefore unnecessary clarification in a re-vision method, that the appellate court could consider in the determination of net income attributable to the Verlet tion of the patent in suit dividend, that provided by the plaintiff's patent protected technical details of the interface between bike lock and lock holder and the associated Vortei-le for the buyer of infringement shape because of the packaging design were not noticeable and were otherwise not have been found by the defendants advertising directly with-applicable. For such a circumstance allows conclusions to it, the extent to which the market opportunities for products marketed by the infringer product ge-rade by the inventive design of the product and the here-mediated by technical or economic benefits have been influenced.
Not in accordance with the Supreme Court, it would have only been, if the Court of Appeal had so far made solely on the visibility provided by the patent in suit under protection details the interface between bike lock and lock holder, just the thing for a divested to private end product can be used alone with such cures the not be adequately captured the usually complex and varied reasons for the market success of a product in ei. However, this is not the case, because the Court of Appeal in principle due consideration of all circumstances of the case has turned mainly on the importance of technical theory of action-related patents and technical advantages for the violation shape as well as the expectations of the market.
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The decision on costs is based on § 97 Abs. 1 Code of Civil Procedure.
Meier-Beck Grabinski Bacher
Hoffmann Schuster
Courts:
LG Düsseldorf, Decision of 28.07.2011 – 4O 263/10 –
OLG Dusseldorf, Decision of 04.10.2012 – I-2 In 76/11 –
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