The contested patent related to heating mats for use in underfloor heatings and the German Patent Court had identified a mechanical engineer with university degree (Diplomingenieur) and experience in the development of heating mats as the relevant person skilled in the art.
In the appeal, the patentee argued that the person skilled in the art should be a craftsman experienced in laying the mats rather than the engineer. No reasons justifying the late submission were given.
The Bundesgerichtshof rejected this argument as being late under the new procedural rules (and, besides of being late, as incorrect).
This hints towards a strict application of the new rules and this blogger finds this decision surprising because the assessment of the inventive step including identification of the relevant skilled person is traditionally considered a question of law and not a question of fact in Germany. Questions of law should not be considered late-filed.
The full text of the decision can be found here (in German).
Michael Thesen
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