Even though European Patents are granted by an international authority, the European Patent Office, it is the national courts which have the final say as to the validity of such patents in their respective country. These courts have developed their own case law, which sometimes contradicts the practice of the European Patent Office.

This article discusses the conflicting views of the German Federal Supreme Court and the European Patent Office as to the patentability of so-called numerical selections which are often used for claiming fundamental nanotechnology inventions. The Supreme Court’s opinion in this matter can put nanotechnology patentees in the unfortunate situation of being granted a European Patent which may be un-enforceable in Europe’s largest national market. Practical advice is presented in this article for applicants of nanotechnology patents to avoid this pitfall.

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Dr. Stefan Rolf Huebner

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S. R. Huebner in Nanotechnology Law & Business, fall 2008, volume 5, number 3, pages 353-357

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