INFORMATION FROM THE CONTRACTING / EXTENSION STATES
Judgment of the Bundesgerichtshof (Federal Court of Justice), 10th Civil Senate, dated 11 July 1995
(X ZR 99/92)*
Headword: Klinische Versuche (clinical tests)
Sections 9 and 11.2 PatG (Patent Law)
Article 27(b) CPC
Keyword: "Right to conduct tests - use of patented subject-matter to gain information about possible further uses - right to test not limited by further-reaching objectives, eg approval under pharmaceuticals legislation"
1. The right to conduct tests under Section 11.2 PatG 1981 is to be interpreted in the light of European Community law.
2. Use of a pharmaceutical's patented active substance in clinical tests, in order to determine whether, and if so in what form, the said substance lends itself to curing or alleviating additional human diseases, may constitute an act performed for test purposes which is concerned with the subject-matter of the invention and therefore lawful.
* Translation of the official headnote. The full text of the decision is reported in GRUR 1996, 109, an abridged version in Mitt. 1995, 274, and NJW 1996, 782, and an English translation in 28 IIC, 103 (1997) and R.P.C. 1997, 623.