Regional Court of Munich I
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`Docket no.: 21 O 20498/15
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`In the legal dispute between
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`[handwritten:] Copy
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`[Coat of Arms]
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`IN THE NAME OF THE PEOPLE
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`Memjet Technology Ltd., represented by its directors, 61/62 Fitzwilliam Lane, Dublin 2, Ireland
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`- Applicant -
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`Represented by:
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`Rechtsanwälte Quinn Emanuel Deutschland, attorneys, Oberanger 28, 80331 Munich, Germany,
`lic. no. 05297-00001 / 21085174.2
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`Versus
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`HP Deutschland GmbH, represented by its managing directors Jochen Erlach and Peter Kleiner,
`Schickardstraße 32, 71034 Böblingen, Germany
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`- Respondent -
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`Represented by:
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`Rechtsanwälte Freshfields, Bruckhaus, Deringer, attorneys, Maximiliansplatz 13, 80333 Munich,
`Germany, lic. no. 042455-0431
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`For patent infringement
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`The Regional Court of Munich I - 21st Civil Division - by way of Presiding Regional Court Judge
`Müller, Regional Court Judge Dr. Schwager, and Regional Court Judge Kuttenkeuler, based on the
`oral hearing 7 January 2016, proclaims the following
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`HP 1010
`Page 1 of 22
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`Final Judgement
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`1. The interim injunction by the Regional Court of Munich I of 16 November 2015 is repealed.
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`2. The application by the Applicant of 13 November 2015 for an interim injunction order is
`dismissed.
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`3. The costs of the legal dispute are ordered to the account of the Applicant.
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`4. The Judgement is preliminarily enforceable. The Applicant may avoid enforcement on the
`part of the Respondent against payment of a security deposit in the amount of 110% of the
`amount enforceable according to this judgement, unless the Respondent deposits a security
`of 110% of the enforceable amount prior to the enforcement.
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`Facts of the Case
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`The dispute between the parties is about the violation of the German part of a European patent
`for a laminated ink distribution assembly for ink jet printers.
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`With respect to the production and distribution of ink jet printers, the parties are in competition
`with each other. The Applicant is the owner of European Patent EP 1 292 451 B 1 (hereinafter:
`Injunction Patent, submitted as Exhibit Ast 6/6a), which was registered on 24 May 2000. Notice
`about the granting of the patent was given on 29 October 2008.
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`The invention underlying the Injunction Patent pertains to an ink distribution assembly for a print
`head containing an array of print chips. The ink distribution assembly serves the purpose of
`distributing multiple inks from multiple ink sources to multiple print chips for printing on a page,
`in order to allow for the page-wide printing of a sheet without there being a need for the print
`head to make scanning motions across the width of the page.
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`Patented according to Claim 1 of the Injunction Patent is an ink distribution assembly for a print
`head to which is mounted an array of print chips, the assembly serving to distribute different inks
`from respective ink sources to each said print chip for printing on a sheet, the assembly
`comprising a longitudinal distribution housing having a duct for each said different ink extending
`longitudinally therealong, a cover having an ink inlet port corresponding to each said duct for
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`HP 1010
`Page 2 of 22
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`connection to each said ink source and for delivering said ink from each said ink source to a
`respective one of said ink ducts, and a laminated ink distribution structure fixed to said
`distribution housing and distributing ink from said ducts to said print chips.
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`Patented according to Subsidiary Claim 2 of the Injunction Patent is an assembly according to
`Claim 1, wherein the laminated ink distribution structure includes multiple layers situated one
`upon another with at least one of said layers having a plurality of ink holes therethrough, each
`ink hole conveying ink from one of said ducts enroute to one of said print chips.
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`Patented according to Subsidiary Claim 3 of the Injunction Patent is an assembly according to
`Claim 1, wherein one or more of said layers includes ink slots therethrough, the slots conveying
`ink from one or more of said ink holes in an adjacent layer enroute to one of said print chips.
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`Patented according to Subsidiary Claim 5 of the Injunction Patent is an assembly according to
`Claim 2, wherein the layers of the laminated structure sequenced from the distribution housing
`to the array of print chips include fewer and fewer said ink holes.
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`Patented according to Subsidiary Claim 6 of the Injunction Patent is an assembly according to
`Claim 2, wherein one or more of said layers includes recesses in the underside thereof,
`communicating with said holes and transferring ink therefrom transversely between the layers
`enroute to one of said slots.
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`In order to illustrate the art of the Injunction Patent, Figures 6, 9a, 9b, and 11 are included at a
`smaller scale.
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`HP 1010
`Page 3 of 22
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`Figure 6 shows an exploded perspective illustration of a print head assembly. Ink is delivered to
`the print chips via a distribution molding (35) and laminated stack (36) arrangement. The
`distribution molding includes six individual longitudinal ink ducts (40) (Fig. 11) which extend
`throughout the length of the array. Ink is transferred from the inlet ports (34) to the ink
`ducts (40). The laminated ink distribution stack (36) consists of a number of laminated layers.
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`The following figures 9a and 9b show a section of the laminated ink distribution stack (36).
`Various layers (52, 56, 60, 62, and 64) and ink holes (53) can be seen, as well as clear channels (58)
`in the underside of the second layer (56). In figure 9b, the ink is represented by interrupted cross-
`hatched lines.
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`Since 24 September 2015, the Respondent has been providing HP PageWide XL printers to
`customers in Germany, which are equipped with the “HP 841 PageWide XL” print head, which
`comprises the ink distribution assembly submitted as Exhibit FBD 16 (contested embodiment).
`The Memjet group, of which the Applicant is part, obtained a contested embodiment on
`12 October 2015, and has disassembled and analyzed it on 20 October 2015.
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`HP 1010
`Page 4 of 22
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`The Respondent has already been distributing “OfficeJet Pro X” printers since April 2013. The
`print heads of the “OfficeJet Pro X” printers are based on the same “pagewide” technology that
`is also used by the contested embodiment. To that extent, the parties engaged in negotiations in
`2014 and 2015 on the issuance of licenses. The licensing negotiations were also held, among
`other things, in view of the alleged infringement of the Injunction Patent by the print heads of
`the “OfficeJet Pro X” printers.
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`At the Applicant’s request in its application of 13 November 2015, received by the Court on that
`same day, and after a partial withdrawal of the application, the Court issued the following interim
`injunction on 16 November 2016:
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`1. Respondent 1) must refrain, under penalty of an administrative fine to be imposed by the
`court of up to EUR 250,000 for each violation, or in the alternative, administrative detention
`of up to six months, and in the case of repeated infringements, of up to a total of two years,
`whereas administrative detention is to be enforced against the legal representatives of
`Respondent 1), from the following:
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`to offer, market, or use in the Federal Republic of Germany, or to import or possess for one
`of the aforementioned purposes,
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`ink distribution assemblies for a print head for “wide-format” printers of the HP PageWide XL
`series (in particular the HP PageWide XL 8000, HP PageWide XL 5000, and HP PageWide XL
`4000/4500 types), featuring an array pf print chips, and the assembly serving for distributing
`different inks from respective ink sources to each of the print chip for printing on a sheet, the
`assembly comprising the following:
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`a longitudinal distribution housing having a duct for each of the different inks extending
`longitudinally therealong,
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` a
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` cover having an ink inlet port corresponding to each of the ducts for connection to each of
`the ink sources and for delivering the ink from each ink source to a respective ink duct, and
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`HP 1010
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`a laminated ink distribution structure fixed to the distribution housing, and distributing ink
`from the ducts to the print chips.
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`if
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`(EP 1 292 451 B1 - Claim 1 - direct infringement)
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`a) the laminated ink distribution structure includes multiple layers situated one upon another
`with at least one of the layers having a plurality of ink holes therethrough, each ink hole
`conveying ink from one of the ducts enroute to one of the print chips
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`if
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`(EP 1 292 451 B1 - Claim 2)
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`the layers of the laminated structure sequenced from the distribution housing to the array of
`print chips include fewer and fewer said ink holes
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`(EP 1 292 451 B1 - Claim 5)
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`and if one or more of the layers include recesses in the underside thereof, communicating
`with the holes and transferring ink therefrom transversely between the layers enroute to one
`of the slots.
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`and
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`(EP 1 292 451 B1 - Claim 6)
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`b) one or more of the layers includes ink slots therethrough, the slots conveying ink from one
`or more of the ink holes in an adjacent layer enroute to one of the print chips.
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`(EP 1 292 451 B1 - Claim 3)
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`HP 1010
`Page 6 of 22
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`2. Respondent 1) must inform the Applicant to what extent Respondent 1) has undertaken the
`respective activities listed in item 1 since 1 September 2014,
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`specifically stating
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`a) the names and addresses of the manufacturers, supplier and previous owners,
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`b) the names and addresses of the commercial purchasers, including resellers, for whom the
`products were intended,
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`c) the quantities of delivered, received or ordered products as well as the prices paid for the
`products.
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`The Respondent has objected to this in its statement of 4 December 2015, received by the Court
`on 7 December 2015.
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`On 16 December 2015, the responded has filed a nullity suit (docket no. 4 Ni 1/16) against the
`Injunction Patent with the German Federal Patent Court (Exhibits FBD 30 and 30a).
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`It is the opinion of the Applicant that
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`the Respondent directly violates the Injunction Patent. Allegedly, the contested embodiment
`literally follows Claims 1, 2, 3, 5, and 6. In particular, the contested embodiment allegedly also
`features a laminated ink distribution structure, since the contested embodiment consists of three
`mutually corresponding layers (a first, second, and third layer) (cf. p. 27 of the Applicant’s
`statement of 13 November 2015), which are allegedly connected with each other.
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`Grounds for an injunction were said to exist as well. The urgency allegedly follows from [the
`circumstance] that the Applicant only learned about the infringement of the Injunction Patent by
`the Respondent on 20 October 2015. The application of 13 November 2015 for an interim
`injunction was therefore submitted within less than a month. The weighing of interests allegedly
`speaks in favor of the Applicant as well. The main products of the Applicant are alleged to be
`large-format printers. The relevant technology was allegedly developed by the Memjet group
`over a period of 15 years. Large-format printers are allegedly a market segment in its own right,
`into which the Respondent is allegedly now entering, thereby becoming the Applicant’s sole
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`HP 1010
`Page 7 of 22
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`competitor. Any sales made by the Respondent in this market segment would be direct losses to
`the Applicant. Moreover, the Respondent’s entry into the market is allegedly leading to an
`erosion of prices.
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`The Applicant requests:
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`that the interim injunction of 16 November 2015 (docket no. 21 O 20498/15) be
`sustained.
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`The Respondent requests:
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`I.
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`that the interim injunction of the Regional Court of Munich I of 16 November 2015, docket
`no. 21 O 20498/15, be repealed.
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`II. that the request of 13 November 2015 that an interim injunction be issued be dismissed.
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`It is the opinion of the Respondent that
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`the contested embodiment does not follow Claims 1, 2, 3, 5, and 6 of the Injunction Patent. In
`particular, the contested embodiment does not feature a laminated ink distribution structure,
`because a laminate supposedly is an assembly consisting of multiple thin layers, lying on top one
`another and connected by their surfaces. To that extent, it is the opinion of the Respondent that
`the ink distribution structure does not only consist of components D, E, and F, referred to by the
`Applicant as first, second, and third layer, but that component[s] C and G (chip carriers), which
`the Applicant had allegedly disregarded, must be considered part of the laminated ink
`distribution structure as well (with respect to the designation of the components, cf. the
`Respondent’s statement of 4 December 2015, pages 21-23, and the statement of 5 January 2016,
`p. 7). Furthermore, the contested embodiment allegedly does not feature a laminated ink
`distribution structure, since it supposedly has a 3D-type (three-dimensional) structure and only
`a selective connection type. Moreover, the individual layers are said to have some vertical ridges
`protruding beyond the rest of the surface of the layer (supraplanar elements), serving for the
`alignment of the components. Furthermore, the six “chip carriers” (Component G) are apparently
`an indispensable part of the ink distribution structure, and are therefore to be considered part
`of the laminated structure. However, since these are six separate components, these supposedly
`would not constitute a layer in the sense of the Injunction Patent. Moreover, the individual layers
`of the contested embodiment are said to be too thick. According to the description of the
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`HP 1010
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`Injunction Patent, the laminated form, as a precision micro form, is allegedly typically made out
`of micro-structured synthetic material. Moreover, allegedly, there are no layered connection and
`no fixed connection between the ink distribution structure and the distributor housing, since the
`individual components are allegedly only partially pressed together. Moreover, Claim 5 is said
`not to have been realized, because the layers of the laminated structure of the contested
`embodiment do not contain “fewer and fewer” holes. First, because the last layer allegedly has
`no holes at all, and therefore not “fewer” holes, but no holes. Furthermore, the layer designated
`by the Respondent as Component C allegedly has the same number of holes as Component D.
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`Furthermore, there would be no grounds for an injunction. The Applicant is said to have been
`aware at least since May 2015 of the offering of the “HP PageWide XL” printers. First of all,
`because the “HP PageWide Technology” had allegedly already been marketed since June 2014.
`Second, two employees of the Applicant had received explanations about the contested embo-
`diment at the FESPA trade fair in Cologne in May 2015. At this occasion, the contested embodi-
`ment had been reached around. On this same day, Memjet Technology Ltd. Had filed a complaint
`with the US District Court for the Southern District of California in San Diego in which it alleged
`that the contested embodiment infringed, among other things, on the patents US 7 325 986,
`US 8 678 550, and US 8 696 096, all of which supposedly relate to the construction of the print
`heads. According to the rules of US civil law, such a complaint could only be allowed if an
`appropriate examination of the patent infringement were performed prior to the filing of the
`complaint.
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`Independently of the above, the Applicant is said to have already asserted the violation of the
`Injunction Patent by the distribution of the “OfficeJet Pro X 451/551” printer in the framework
`of the licensing negotiations, for instance in November 2014. These products are said to have
`been distributed in Germany as well since the beginning of 2013. They are allegedly practically
`identical to the contested embodiment, there being no technical differences between them, and
`therefore being identical in essence. For that reason there would be an absence of urgency, since
`the Applicant had not opposed an earlier identical infringement, despite having had knowledge
`of it. The licensing negotiations are said to stand in the way of the required urgency as well, since
`the Applicant had shown through [its engagement in] them that the injunctive relief claim was
`not a matter of fundamental interest.
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`Furthermore, in the framework of the weighing of interests, it should be considered that the
`Respondent was exposed to a grave risk. In the short period between the beginning of deliveries
`and the issuance of the interim injunction on 16 November 2015, the Respondent had already
`sold 15 printers. The distribution partners of the Applicant, on the other hand, had supposedly
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`HP 1010
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`only sold 17 printers since 2012. Furthermore, the legal sustainability is allegedly insufficiently
`secure, as the asserted claims from the Injunction Patent are said to have been preempted by
`WO 00/23279 A1 (“Silverbrook ‘279”) (Exhibit FDB 25). At the very least, in view of
`WO 00/23279 A1 in combination with EP 0 666 174 A2 (“Cowger”) or US 6,003,971 (“Hanks”),
`the asserted claims allegedly require no inventive step.
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`To this, the Applicant responds
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`that while it is true that the Injunction Patent does not explicitly define the concept of laminate,
`the person skilled in the art understands this term based on his professional knowledge to mean
`a structure consisting of layers, of which the individual layers are fixedly connected. Accordingly,
`the person skilled in the art is said to understand from para. [0023] of the Injunction Patent that
`a gluing of multiple layers would lead to a claimed laminate. To the extent that the Respondent
`should argue that in addition, a laminated ink distribution structure should consist of thin two-
`dimensional layers, this would be contrary to the principles of patent law, for the Respondent
`would be interpreting the Injunction Patent under its wording, which does not address the
`thickness and the construction of the layers. Rather, it allegedly follows from the description of
`the Injunction Patent that the three-dimensional layers are covered by the claims as well. To that
`extent, Figure 14 of the Injunction Patent supposedly shows recesses in the underside of the first
`layer, and channels in the second layer. Contrary to the Respondent’s view, the Injunction Patent
`would not require a full-surface connection. In view of the holes existing in the laminate layer,
`the person skilled in the art supposedly understands that not 100% of the surface areas of
`individual layers must be glued.
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`To the extent that the Respondent should argue that there is no ground for an injunction, the
`Applicant points out that in view of the contested “HP PageWide XL” printers, the US patent
`infringement suit was submitted based solely on a substantiated suspicion, and not on any
`positive knowledge of the patent infringement by the “HP PageWide XL” printers. Moreover, the
`Applicant, existing knowledge about the “OfficeJet Pro X” printers is allegedly not damaging to
`the urgency claim, for one, because the print heads of the “OfficeJet Pro X” and the
`“HP PageWide XL” printers are said to differ in their number of print chips and in their
`dimensions. Also, the Applicant had not proceeded against the “OfficeJet Pro X” printers because
`they had not affected the interests of the Applicant in nearly the same degree, as the Applicant’s
`business was merely the currently affected large-format print media niche market. Rather, “in
`the meantime”, the Applicant had withdrawn from the office printers market segment, and
`Memjet office printers would no longer be delivered. Therefore, this would be a case of
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`intensification, extension, and significant change of the infringing act, with as a result that the
`urgency period would have restarted, independently of the question of essential identity.
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`Contrary to the Respondent’s view, the legal sustainability is allegedly sufficiently ensured, since
`Citation WO 00/23279 A1 (“Silverbrook”) does clearly not feature a laminated ink distribution
`structure. Citation EP 0 666 174 A2 (“Cowger”) had already been considered in the granting
`procedure, and its art pertained merely to the use of a single ink. Citation US 6,003,971 (“Hanks”)
`allegedly pertains to the entirely different piezo-technology, and does not address the
`distribution of different inks to a plurality of print chips.
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`To complement the facts of the case, we refer to the statements exchanged between the
`representatives of the Parties including their annexed exhibits, to the minutes of the oral hearing
`of 7 January 2015, as well as to the other content of the court file.
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`Grounds for the Decision
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`The interim injunction had to be examined for its legitimacy in view of the Respondent’s
`opposition. This leads to its repeal, as the contested embodiment does not infringe against the
`Injunction Patent, and moreover, since there is no ground for an injunction due to the absence
`of urgency.
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`I.
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`The contested embodiment does not infringe against the Injunction Patent.
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`1. The technical art protected by the Injunction Patent can be learned by the average relevant
`person skilled in the art from the characteristics of the determinant Claims 1, 2, 3, 5, and 6 of the
`Injunction Patent in detail, and in its entirety when adding the description and the drawings. The
`meaningful understanding of the content of the protected technical art must be determined in
`consideration of the general professional knowledge available in the respective field of
`technology and average knowledge, experience, and skills of the relevant industry on the priority
`date (German Federal Supreme Court (BGH), Journal of the German Society for the Protection of
`Industrial Property and Copyright (GRUR), 2004, 1023, 1025 - Bodenseitige Vereinzelungseinrich-
`tung [floor-mounted separating device]; GRUR 2003, 550 - Richterausschluss [disqualification of
`judges]). The prior art reported in the patent document is an important aid to understanding this
`(BGH, GRUR 1978, 235, 237 - Stromwandler [voltage transformer]).
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`HP 1010
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`a. The determinant average person skilled in the art is a qualified engineer in the field of
`precision engineering (machine construction) with multiple years of experience in the field of
`the development of precision-engineered devices.
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`b. The Injunction Patent pertains to an ink distribution assembly for a print head featuring an
`array of print chips, the assembly serving the purpose of distributing different inks from the
`respective ink source to each of the print chips for printing a sheet.
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`From prior art, print head assemblies are known that are suitable for printing A4-size pages,
`in which the print head must make a scanning motion across the width of the page [0007].
`Furthermore, ink distribution structures are known which distribute one ink to an array of
`print chips (EP 0 666 174 A2 - Cowger).
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`It is the task of the contested invention to provide an ink distribution structure for an ink jet
`printer for different inks, suitable for a page-wide print head assembly which comprises a
`plurality of print chips.
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`According to the patent, this is to be accomplished by an ink distribution structure with the
`characteristics of Claim 1. The Applicant supports its claim to injunctive relief on the
`unconditional combination of the characteristics of Claims 1, 2, 3, 5, and 6.
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`For the solution of the stated task, the Injunction Patent proposes an ink distribution
`assembly according to Claim 1, which can be structured in the following form for the purpose
`of a characteristics analysis:
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`1.1
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`an ink distribution assembly for a print head
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`1.1.1
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`to which is mounted an array of print chips,
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`1.1.2
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`the assembly serving to distribute different inks from respective ink sources to each
`said print chip for printing on a sheet, the assembly comprising the following:
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`1.2
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`a longitudinal distribution housing having a duct for each said different ink extending
`longitudinally therealong,
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`1.3
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`a cover having an ink inlet port
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`1.3.1 corresponding to each said duct for connection to each said ink source and
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`1.3.2
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`for delivering said ink from each said ink source to a respective one of said ink ducts,
`and
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`1.4
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`a laminated ink distribution structure fixed to said distribution housing and
`distributing ink from said ducts to said print chips.
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`The subsidiary claims 2, 3, 5, and 6 can be structured as follows:
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`2.1
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`2.2
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`2.3
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`3.1
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`3.2
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`5.
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`6.1
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`6.2
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`6.3
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`An assembly according to Claim 1, wherein the laminated ink distribution structure
`includes multiple layers situated one upon another
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`with at least one of said layers having a plurality of ink holes therethrough,
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`each ink hole conveying ink from one of said ducts enroute to one of said print chips.
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`An assembly according to Claim 1, wherein one or more of said layers includes ink
`slots therethrough,
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`the slots conveying ink from one or more of said ink holes in an adjacent layer enroute
`to one of said print chips.
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`An assembly according to Claim 2, wherein the layers of the laminated structure
`sequenced from the distribution housing to the array of print chips include fewer and
`fewer said ink holes.
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`An assembly according to Claim 2, wherein one or more of said layers includes
`recesses in the underside thereof,
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`communicating with said holes and
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`transferring ink therefrom transversely between the layers enroute to one of said
`slots.
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`c. The person skilled in the art understands the characteristics of the patent claims as follows:
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`aa) The ink distribution assembly according to Characteristic 1.1 serves the purpose of
`distributing different inks from different ink sources to a plurality of print chips situated
`inside the ink distribution assembly for printing on a sheet, for instance a sheet of paper.
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`bb) The distribution housing according to Characteristic 1.2 consists of multiple longitudinal
`ducts containing the ink, which extend longitudinally along distribution housing [0035].
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`cc) Characteristic 1.3 states that the distribution housing has a cover with ink inlet ports, with
`each inlet port serving the purpose of supplying one duct of the distribution housing with
`ink from one ink source [0035].
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`dd) Characteristics 1.4 and 2.1 state that the ink distribution assembly features a laminated
`ink distribution structure that is fixed to the distribution housing in order to form a sealed
`unit with it [0057], and serves the purpose of distributing ink from the ducts to the
`plurality of print chips. The person skilled in the art further understands from the
`Injunction Patent that according to the patent, and indeed, to this extent, uncontested
`between the parties, the laminated ink distribution structure consists of multiple layers
`positioned on top of each other [0016], and that the individual layers of the laminated
`stack are connected, preferentially glued, with each other [0023] so as to form a sealed
`unit [0057]. The person skilled in the art further understands the characteristic “laminated
`ink distribution structure” to mean that the laminated layers are flat plates.
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`Contrary to the view of the Respondent, the Injunction Patent nowhere explicitly
`addresses the form that the layers (positioned on top of each other) must have, because
`contrary to the view of the Respondent, paragraphs [0054] and [0055] of the description
`of the Injunction Patent state nothing from which it can be learned that the layers must
`be thin. The description of the Injunction Patent, to the extent that it relates to the
`laminated stack, only mentions a precision micro form or a micro form, respectively.
`Explanations about the thickness of the individual layers cannot be found there. To the
`extent that the Respondent was referring to the measurement specifications in
`para. [0034], these relate to the print chips, and not to the laminated ink distribution
`structure. Such information can also not be derived from the exemplary embodiments
`shown in Figures 12 through 19. While it is true that Figures 12 through 19 show thin
`layers, an exemplary embodiment does not typically allow for a restrictive interpretation
`of a patent claim characterizing the invention as a whole (German Federal Supreme Court
`(BGH), Journal of the German Society for the Protection of Industrial Property and
`Copyright (GRUR), 1985 - 967 Zuckerzentrifuge [sugar centrifuge]).
`
`In order to determine the content of the characteristic of a laminated ink distribution
`structure, and in particular to answer the question what is to be understood, according
`to the patent, to be a layer of a laminated structure, we must first refer to the prior art
`cited in the Injunction Patent, to the extent that it was submitted by the Parties. However,
`neither EP 0 666 174 A2 submitted by the Respondent, nor GB 2 115 748 A submitted by
`the Applicant, address the question of how a laminated structure, or respectively, a
`laminate, are to be understood. To the extent that the Applicant refers to Figures 9B and
`9C and to the description on p. 4, lines 28 through 39 of GB 2 115 748 A, there is nothing
`in the figures or in the description there stating that what is shown or described is a
`laminated structure. Accordingly, a person skilled in the art would not refer to this
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`document in order to interpret the meaning of the concept of a laminated structure. For
`that, the general professional knowledge of the person skilled in the art would have to be
`referred to.
`
` On this matter, the Respondent has argued, and it has not been contested by the
`Applicant, that the prior art submitted as Exhibit FBD 19 (US 5,087,930, US 4,730,197, and
`US 6,003,971) are part of the general professional knowledge of the person skilled in the
`art. When referring to this general professional knowledge of the person skilled in the art,
`the latter would understand the laminated structure characteristic to mean that the mul-
`tiple connected layers are plates or foils. From US 6,003,971, the person skilled in the art
`would learn in Column 6 line 66 that the laminate consists of multiple layers. in Column 6
`lines 60 - 63, US 6,003,971 tells us with respect to a laminate layer that these are plates
`or foils which are laminated with each other. The same follows from US 5,087,930, which
`uses an identical phrasing in column 8, lines 62 through 65. Applying a functional inter-
`pretation, the person skilled in the art understands that for the distribution of inks by ink
`ducts to print chips, foils are not suitable, since due to their nature they are incapable of
`featuring holes for the distribution of inks, nor recesses for the transportation of inks. The
`person skilled in the art therefore understands from Characteristic 1.4 that the laminated
`layers are plates. And from the concept of plate [German: ‘Platte’], the person skilled in
`the art learns that they are flat [German: ‘platt’], in other words: level, planar surfaces
`without significant elevations or depressions which, when placed on top of each other,
`produce a laminated structure (para. [0016] of the Injunction Patent). Applying a
`functional interpretation, the person skilled in the art further understands in view of
`claims 1 and 6 that plate-type layers of the laminated ink distribution structure may and
`must contain holes, slots, and recesses for transporting the ink from the ink ducts to the
`print chips.
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`This interpretation of the characteristic of a laminated ink distribution structure is also
`congruent with the general definitions of the concept of laminate as submitted by the
`Respondent, and also does not imply that any of the exemplary embodiments is covered
`by the technical art of Claim 1, and that therefore the aforementioned interpretation
`would be ruled out (cf. BGH, GRUR 2015, 159 - Zugriffsrechte [access rights], Munich
`Superior Regional Court, ruling of 18 June 2015 - 6 U 1379/14), since the exemplary
`embodimen