Purfürst v Etablissements Vitoux

Date29 Marzo 1958
CourtObsolete Court (Germany)
Arbitral Commission on Property, Rights and Interests in Germany, Second Chamber.

(Sauser-Hall, Vice-President; Schwandt, Marion.)

Etablissements Vitoux

Arbitration — In general — Conception and function of arbitration — Appeal to Arbitral Commission from decision of municipal court — Selection of applicable law — Arbitral Commission on Property, Rights and Interests in Germany — Competence to fix royalties for exploitation of patent and other terms.

Arbitration — In general — Law applied by arbitral tribunals — Principles of equity.

Arbitration — Procedure — Procedure before Tribunal — Principle of estoppel.

The Facts (as stated by the Commission).—“By decision of February 14, 1958,[1] the Arbitral Commission has declared admissible the application dated August 16, 1955, filed on August 19, 1955, at Rathaus Herford (Westphalia) by the complainant Purfürst against the decision of the Grand Senate of the German Patent Office of February 21, 1955, and served on April 19, 1955, by which the terms of a non-exclusive licence under patent 537 631 owned by the firm S. A. Établissements Vitoux and exploited by the defendant were fixed.

“At the hearing of February 14, 1958, the two parties approved of the judgment of admissibility, thus dispensing with their right to appeal under Article 66 of the Rules of Procedure of the Commission so that it became possible to open the oral hearing immediately.

“From the pleadings exchanged between the parties and the oral arguments presented by them before the Commission, the following facts appear to be underlying the case:

“The firm S. A. Établissements Vitoux, a company established under French law, is the owner of the German patent 537 631 concerning a ‘Device for the Repair of Ladders in Woven Articles and Hosiery’ and of the additional patent 652 269 concerning the same object. The duration of the main patent commenced on October 31, 1928, and ended on October 30, 1946. [The period of validity of

the main patent was subsequently extended until November 26, 1956.] The patent covers a compressor and a needleholder guide which, for the first time, permitted the use of compressed air as propelling force for the needle so that the compressed air operates directly on the part bearing the needle in the interior of the needleholder guide

“In view of the events during the Second World War, the Patent Administrative Department, by Order of February 12, 1951, has restored to the owner of the main patent 537 631 its former rights and has extended the period of validity of the latter pursuant to Article 5 of Allied High Commission Law No. 8 concerning Industrial, Literary and Artistic Property Rights of Foreign Nations and Nationals (as amended by Laws Nos. 30, 39, 41 and 66) with the effect that the twelfth year of duration of the patent commenced on November 29, 1949. The patent in question was thus protected in Germany until November 28, 1956, the normal duration of patents under German law being 18 years. The additional patent 652 269 of the firm [of] Vitoux is of no immediate relevance for the present case since no licence for this patent has been applied for.

“The complainant, a resident of the Federal Republic of Germany, is the owner of a German patent 758 173 concerning a ‘Support for a Device for the Repair of Ladders’ for which a period of protection of 18 years was granted on March 16, 1941. This so-called Kraucher Patent also concerns an apparatus operated by compressed air in which, however, the needleholder has been arranged differently, the advantage being that no oil can flow from the needle. The complainant started to manufacture and sell these machines for the repair of ladders prior to September 30, 1949, and has continued to do so without interruption.

“The firm [of] Vitoux has brought an action against the complainant Purfürst for infringement of patent which was dismissed in the first instance by the Landgericht, Dusseldorf, by its decision of December 12, 1951, subsequently by the Oberlandesgericht, Düsseldorf, by decision of December 29, 1952, and in the last instance by decision of the Bundesgerichtshof of October 6, 1953, on the ground that the complainant Purfürst had acted in good faith in manufacturing and selling the object of the patent and that he was entitled to an interim use of the patent by virtue of Article 7 of Allied High Commission Law No. 8. The complainant Purfürst, on his part, brought an action for nullity against the firm [of] Vitoux concerning patent 537 631, which was also dismissed in the last instance by the Bundesgerichtshof, by its decision of January 7, 1955. All these decisions are final and definite. It has been established therein that patent 758...

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