If the patent by several plaintiffs attacked to the same extent, is a breakdown of the amount in dispute to the individual complaints and a separately-made value for fixing the value of the object of a lawyer, the counsel for the plaintiff not a single room.
DECISION BGH X ZR 83/10 from 27. August 2013 – Nullity dispute II
in the patent nullity case
Source: and
References omitted: no
BGHR: and
RVG § 32 Abs. 1, § 33 Abs. 1
BGH, Decision of 27. August 2013 – X ZR 83/10 – Federal Patent Court
Der X. Civil Division of the Federal Court on 27. August 2013 Presiding Justice Prof. Dr. Meier-Beck, the judge Groening, Dr. Grabinski, Hoffmann and the Judge Schuster
decided:
The value of the object of the legal work of the Pro-zessbevollmächtigten the applicant to 3 is on 20.000.000,00 Set €.
Moreover, the defendants' motion is rejected.
Reasons:
The allowed the defendants 'motion for separate determination of the Ge-genstandswerts for the lawyer in the appeal process is regard-lich attorneys' fees of counsel for the applicant to 3 be-founded, because they do not calculate which governs the court fee value (§ 33 Abs. 1 RVG). With regard to the applicants 1, 2 and 4 rejected the application.
1. That § 32 Abs. 1 RVG is the fixing of an authoritative for the Gerichtsge-value fees for the attorney's fees measure-giving. The amount in dispute for the appeal process, the Senate by Be-resolution dated 14. January 2013 on 30.000.000 Set €.
The amount in dispute in patent revocation proceedings under § 51 Abs. 1 GKG to determine in its reasonable discretion. According to the established case law of the Senate of the fair market value of the patent at instituting proceedings or notice of appeal plus the amount of accrued up da-out damages is this usually determines (BGH, Decision of 11. October 1956 – I ZR 28/55, Wheat 1957, 79; Decision of 7. No-vember 2006 – X ZR 138/04, Wheat 2007, 175 – Sachverständigenentschädi-tion IV; Decision of 28. July 2009 – X ZR 153/04, Wheat 2009, 1100 Printing press temperature III; Decision of 12. April 2011 X ZR 28/09, Wheat 2011, 757 – Nullity dispute; Busse / Keukenschrijver, Patent Law, 7. Edition., § 84 Rn. 57 mN). A breakdown of the amount in dispute among several claimants is not permitted (BGH, Decision of 24. July 1953 I ZR 56/51, Wheat 1953, 477; Benkard / Rogge, Patent Law, 10. Edition., § 84 Rn. 21), since the value of the patent for each plaintiff is equal.
2. However, for a claimant (or defendant) be a lesser value significantly, when its legal protection goal remains significantly behind the other legal-aim. Then out a valuation under § 33 Offered RVG, the opposite of the value determination under § 32 RVG subsidiär ist (BGH, Decision of 30. September 2010 – Xa ZR 34/08, juris; Decision of 22. February 2011 – X ZR 28/06, juris; Mayer/Kroiß, Lawyer Compensation Act, 6. Edition., § 33 Rn. 3; Gerold/Schmidt/Mayer, Lawyer Compensation Act, 20. Edition., § 33 Rn. 3 AE).
3. Contrary to the defendant are the application-these principles, neither the principle of equality (Art. 3 GG) or the right to a fair trial against.
aa) The Civil Procedure Code, the patent in court proceedings (§ 99 Abs. 1 Patgan) and the nullity appeal proceedings before the Federal Court-yard in addition applies, allows lawsuits filed by several Streitgenos-sen against a defendant, has the costs of the applicants in are subject to tra-gen, which in turn turn, must bear a share of the costs in common are subject. The defendant in this case, an increased Kostenri-siko (§§ 59 ff., 91, 100 Code of Civil Procedure).
In the patent application for annulment is a popular action, that may be charged at a standstill valid patent by anyone without the need for a legal interest. The danger, that an inde-foreseeable number of plaintiffs attacking the patent, however, there is not regular, because people generally taken only in infringement proceedings by the patentee in An-demanding or companies or those, where an in-demanding takeover threatens, in turn enter into a cost risk and raise Nichtigkeitskla-ge. That the patent holder from a subjective complaint accumulation is exposed to ei-nem increased cost risk, is an inevitable consequence of this embodiment of the right of action and, therefore, to accept in principle. Whether et-what else applies in case of improper action was brought, requires no de-divorce, because relevant circumstances are not argued or else he-clearly.
bb) The defendant charging fees for a pharmaceutical com-pany, the – as – is engaged in research, in patent nullity often stands on the side of the defendant and the patent is attacked by a number of plaintiffs, disproportionate.
In such a process can – as stated – be given an unequal Kostenbe-utilization of the parties, if the defendant patentee facing a majority of plaintiffs, each consisting of the amount in dispute, determined in accordance with the market value of the patent, can calculate the attorneys' fees for his counsel. The unequal costs Belas-tung is a consequence of the design of the patent application for annulment as Popu-larklage and the generally recognized principles, according to which the amount in dispute is to be determined in patent nullity proceedings. For each action, the be-contested patent has the same value. This value is not reduced for each applicant as, that more applicants are available. This follows from the fact, that the actions may be brought independently of each other and can evolve differently as in the case of dispute, also after the usual connection to common negotiation and decision. This consequence of the above legal starting position, the no approach to equitable considerations in individual cases has, have added-take parties; a correction would remain the legislature reserved.
4. In case of dispute is to be in terms of legal fees for the applicant 3 a value less than decisive for the other applicants. The applicant-nen to 1 and 4 and the applicant 2, has discontinued its action, have 1. Instance attacked the patent and the supplementary protection certificate, die Klägerin zu 3 has plotted only to the annulment of the patent.
The Patent Court has declared the patent and the protection certificate null and void. Decisive for the subject value of legal work for the applicants in each case their request for dismissal of the appeal of loading complained, by which it requested the amendment of the patent court judgment and the dismissal of the respective annulment.
The Senate rated the patent with two thirds and the Schutzzer-tificate with a third of the total amount in dispute. The value at the at-walt-union activity of the applicants to 1 and 4 is thus consistent with the set for the Ge-directional toll value of 30.000.000 € identical, during the
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Item value of the applicant's legal work to 3, only the patent has affected, corresponding to two thirds of the fixed-th law for the court penalty value.
Meier-Beck Gröning Richter am Bundesgerichtshof
Dr. Grabinski can not sign for Ur-foliage.
Meier-Beck
Hoffmann Schuster
Lower court:
Federal Patent Court, Decision of 19.05.2010 – 3 Ni 15/08 (BE) –
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