“Bicycle Crank Arm Apparatus (Tretkurbeleinheit)”

• a) A new means of challenge derived from technical information in a citation introduced for the first time in the appeal proceedings and meant to support the plaintiff’s submission is only admissible in patent nullity appeal proceedings under the preconditions of Sec. 531(2) first sentence, Nos. 1 to 3 of the Code of Civil Procedure, irrespective of whether the prior publication and technical content of the citation are undisputed. The same applies to documents that could prove a technical development leading away from the invention and are therefore a possible defence for the defendant.

• b) If the plaintiff argues that it only discovered a citation through a search carried out after the decision at first instance was rendered, the plea based on it is only permissible pursuant to Sec. 531(2) first sentence No. 3 of the Code of Civil Procedure if the plaintiff shows that an appropriate selection of the search profile for the search carried out to justify the patent nullity action would not have revealed the citation.