Munich, February 19, 2020: The fischerwerke GmbH & Co. KG, based in Waldachtal/Germany, has successfully defended European Patent EP 1 338 711 B1 for special fixings for sanitary ceramics in nullity appeal proceedings before the German Federal Supreme Court – BGH (Docket number: X ZR 6/18). By its judgment of 13 February 2020, the BGH set aside the judgment of the 7th Senate (Nullity Senate) of the German Federal Patent Court of 7 December 2017 (Docket number: 7 Ni 15/16 (EP)), by which the patent in suit at the initiative of the Spanish competitor Celo Fijaciones S.L. (formerly Apolo Fijaciones y Herramientas, S.L.), had been partially revoked.
With patent EP 1 338 711 B1, fischerwerke has protected an innovative solution in the field of special fixings for sanitary ceramics. These are used in particular for toilet bowls freely suspended on the wall, where considerable forces act on the fixing at an unfavorable angle under load. fischerwerke, the world market leader for plugs, also offers a wide range of innovative special fixings. A special feature in this case is that the fixing is completely retractable and thus does not impair the high-quality design of modern toilet bowls.
The patent for this innovative solution, which fischerwerke had applied for on 16 January 2003, was already successfully enforced against a major competitor before the Regional Court of Dusseldorf in 2015. Following these infringement proceedings, the Spanish competitor Apolo Fijaciones y Herramientas, S.L. (now Celo Fijaciones S.L.) filed a nullity suit against the patent because it wanted to launch its competing product on the German market. Parallel proceedings against this competitor are pending in Italy and Turkey.
In the opinion of the opposing party, the granted version of fischerwerke’s patent comprised added matter compared to the original application. On objection of the examiner during prosecution of the patent application, fischerwerke had amended independent claim 1 by including a feature from an embodiment described in a dependent claim without including all features of this embodiment. However, the BGH allows such a “generalization” if it is directly and unambiguously disclosed to the skilled person that the adopted feature as such promotes the solution of the problem to be solved by the patent irrespective of the other features. This case law, which was established, inter alia, in the well-known decisions “Kommunikationskanal” and “Stent”, has been fully confirmed by the BGH in the present decision.
The fischerwerke GmbH & Co. KG was represented in the proceedings by partner Dr. Constantin Kurtz of KLAKA Attorneys at Law and by patent attorney Dipl.-Ing. Dieter Späth, partner of ABACUS Patent Attorneys. Apolo Fijaciones y Herramientas, S.L. (today Celo Fijaciones S.L.) was represented by Dr. Felix Wolff and Dipl.-Phys. Jan Pieter Loock of Kutzenberger Wolff & Partner. Dr. Constantin Kurtz has been representing fischerwerke in patent disputes in Germany for many years.
The fischer group based in Waldachtal in the northern Black Forest is one of the leading international companies for fixing technology, automotive interiors and construction toys. In 2018, the company generated a turnover of 864 million Euros with around 5.200 employees worldwide. The family business is represented by 47 companies in 35 countries and exports to over 100 countries. It comprises the five divisions “fischer fixing systems”, “fischer automotive”, “fischertechnik”, “fischer Consulting” and “LNT Automation”. fischer fixing systems is the technological market leader in important fields of fixing technology. By fischer group’s workforce in Germany, 20 times more patents per employee are registered than the average for the German economy. The company has a total of more than 1.500 industrial property rights.
Representatives fischerwerke GmbH & Co. KG
KLAKA Attorneys at Law, Munich
Dr. Constantin Kurtz, Attorney-at-Law, Partner
ABACUS Patent Attorneys, Nagold
Dipl.-Ing. Dieter Späth, Patent Attorney, European Patent, Trademark, and Design Attorney, Partner
Inhouse fischerwerke, Waldachtal
Dr. Ulrich Suchy, Head of the Industrial Property Rights Department, Patent Assessor, European Patent Attorney
David Lehmann, European Patent Attorney
German Federal Supreme Court, Karlsruhe
Dr. Grabinski (Presiding Judge)
Dr. Kober-Dehm (Judge)
Dr. Rombach (Judge)
Dr. Rensen (Judge)
Representatives Apolo Fijaciones y Herramientas, S.L. (Celo Fijaciones S.L.)
Kutzenberger Wolff & Partner
Dr. Felix Wolff, Patent Attorney, European Patent Attorney, Partner
Dipl.-Phys. Jan Pieter Loock, Patent Attorney, European Patent Attorney, Partner