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Enforcement of Patents on Geographically Divisible Inventions

An Inquiry into the Standard of Substantive Patent Law Infringement in Cross-Border Constellations

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Agnieszka Kupzok

This work investigates the challenges of enforcement of patent rights in geographically divisible inventions. It considers aspects of technological progress which pose challenges to the established system of patent protection based on the territorial limitation of rights. The analysis focuses on substantive patent law, especially on the infringement provisions. It is carried out in the context of Internet-related inventions, which demonstrate an extraordinarily construed technical nature, namely geographical divisibility. This leads to the inquiry of whether the infringement standard is appropriate in relation to the technological development in ICTs.
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6. Infringement of patents on geographically divisible inventions

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As explained above in Section 2.5 and as argued throughout this thesis, geographically divisible inventions merit a comprehensive analysis due to the manner in which they challenge principles of patent law, and general assumptions on which intellectual property law has been based.1265 It is the case that constellations of patent infringement of geographically divisible inventions form a very specialized subgroup of all the patent infringement cases. They form also a subset of the broader group of infringement cases involving an extraterritorial component. In the following, the cases that actually arose in German, United Kingdom and American jurisprudence are presented and discussed. Also, the problematic aspects raised by the Courts are illuminated. These challenges are then taken up in and discussed in Chapter 7.

An important decision, in which a German Court, for the first time, handed down a verdict on a geographically divisible invention, was the so-called “Prepaid Cards II” decision of the Düsseldorf Appeals Court in December 2009.1267 ← 269 | 270 → The plaintiff, Belgian affiliate of a company IDT called Prepaid Cards BVBA, is an exclusive licensee of the patent right for a method patent, which has successfully survived an invalidity lawsuit all the way to the Federal Supreme Court of Germany.1268 The defendant is an Irish-based branch of Lycatel.1269 The patented process covers handling prepaid telephone calls, which enables the offering for sale of prepaid telephone cards on the market. The patented invention consists of the following steps: (1) Programming of a computer programmable telephone server,...

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