Klaka defends Fischerwerke patent before Federal Court of Justice

The patent in question, EP 1 338 711 B1, protects a fixture for bathroom ceramics. In particular, the fixture mounts free-floating toilet bowls onto a wall. The fastener, which ensures toilet bowls can bear considerable loads at an unfavourable angle, is completely retractable and therefore not visible after installation. Although Fischerwerke is known for its wall fasteners, the company also offers various other special fasteners.

The Federal Court of Justice has overturned a first-instance decision from 2017 (case ID: 7 Ni 15/16). At that time, the Federal Patent Court had partially destroyed the property right. The judges justified their decision by citing an inadmissible extension of the patent claim.

Patent claim extended

During the grant procedure, an EPO examiner contested the patent claim. As a result, wall fastening product company Fischerwerke included a feature described in the sub-claim in the main claim. However, it did not include all of the other features described in the sub-claim.

The Federal Court of Justice allows this practice, known as ‘intermediate generalisation’, if the person skilled in the art can clearly see that the adopted feature also contributes to the implementation of the invention. In the present case, the court took this to be a given (case ID: X ZR 6/18). The court therefore reversed the first instance decision and declared the patent, which runs until early 2023, as legally valid.

A company has attacked Fischerwerke’s property right before. In 2015, an infringement action brought by Fischerwerke against a Turkish competitor before the Düsseldorf Regional Court, as well as the parallel nullity proceedings, ended in a settlement.

Shortly afterwards, the bathroom ceramics manufacturer Celo Fijaciones (then known as Apolo Fijaciones y Herramientas) filed a nullity suit in the Federal Patent Court. The Spanish company wanted to bring its own products to the German market. However, according to the Federal Court of Justice, the company must wait until the patent expires.

Constantin Kurtz

Currently, further parallel proceedings between Fischerwerke and Celo concerning both the patent’s infringement and validity are pending in Italy and Turkey.

From applicant to litigator

Fischerwerke relied on its core advisor Klaka. Patent litigator Constantin Kurtz regularly represents the manufacturer in cases, for example in 2018 against Ejot over special wall fasteners. In such cases, Kurtz frequently works together with the patent attorneys from Weickmann & Weickmann. However, Abacus partner Dieter Späth assisted Kurtz in the current case. The team is regularly involved in patent applications for Fischerwerke.

Cologne-based patent attorney firm Kutzenberger Wolff represented Celo in court for the first time. The team around patent attorney and partner Jan Pieter Loock had previously worked for the Spanish client in an advisory capacity, for example providing expert opinions. The firm originally came to the client via a recommendation and specialises in oppositions at the EPO.

Jan Loock

For Fischerwerke
Klaka (Munich): Constantin Kurtz
Abacus (Nagold): Dieter Späth (patent attorney)
In-house: Ulrich Suchy (head of IP), David Lehmann (both patent attorneys)

For Apolo/Celo
Kutzenberger Wolff & Partner (Cologne): Jan Pieter Loock (lead), Felix Wolff (both patent attorneys)

Federal Court of Justice Karlsruhe, 10th Civil Senate
Klaus Grabinski (chairman), Fabian Hoffmann, Helga Kober-Dehm, Patricia Rombach, Hartmut Rensen