In the recent decision 4Ob76/21m of June 22, 2021, the Supreme Court once again stated that a so-called ” less advantageous embodiment” does not constitute an infringement if the essential effect of the invention is not achieved.
In the case in question, the purpose of the patent in suit was to reduce the abrasion of a railway turnout and to increase the breaking strength of the tongue rail. The tongue rail is that part of the turnout which is moved back and forth in order to steer the train in one direction or the other. The patent in suit solves this problem by reinforcing the tongue rail in a specific manner.
The courts concluded that the reinforcement of the contested turnouts was so little to achieve the essential effect of the patent.