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BundesgerichtshofRotorelemente ("Die member"), Bundesgerichtshof, Germany, 12 May 2015, Case No. ZR 47/13

The Federal Supreme Court held in its very important decision “Rotorelemente” (“die member”) that a claim has always to be constructed in light of the description and the drawings. This holds also true for a claim which is logical in itself and therefore does not seem, at first sight, to need a profound claim construction, in taking into account drawings and description.

In the case that had to be decided, the claim was very clear in itself, but was in complete contradiction to the description, it was contradictory to the only example and to all drawings. This was due to an error that occurred at the end of the granting procedure, where two features in the claim were swapped wrongfully.

In the first instance decision, the Federal Patent Court had revoked the patent, since it was of the opinion that with a claim being consistent and logical in itself, there is no possibility to construct it in the sense given by the description and the drawings. The Federal Supreme Court overruled the decision saying that every patent claim needs to be constructed in light of the description and the drawings, even if, at first sight, the wording is clear und unambigous. In doing so, the Federal Supreme Court held that two features of the patent claim have to be constructed in a way that the wording of the claim has to be amended, following the sense of description and drawings.


The Federal Supreme Court added that this does not contradict the “occlusion device” judgment. There, two examples were described in the description, but only one of them was part of the claim. In such a situation it is not possible to construct the claim in a way that also the other examples falls under the scope of the patent.

Already in its decision X ZR 35/11 “Zugriffsrechte” (which may be read here), the Federal Supreme Court held that a claim construction usually need to take into account that at least one example of the description falls under the claimed invention.

Read the decision (in German) here.

Head note: Konstantin Schallmoser, Preu Bohlig & Partner