The German Federal Supreme Court has dealt with the law on utility models in its decision X ZB 27/05 of June 20, 2006. In contrast to previous decisions, it has made no difference between inventive action and inventive step. In addition, the question of inventive step is considered to be a point of law and not a question of fact.

Official guidelines of the German Federal Supreme Court ("Demonstrationsschrank") (Original in German Language)

1. Just like the precondition of inventive action for granting a patent in Patent Law, the criterion of inventive step in the law for utility models according to § 1 GebrMG is not a quantitative one, but a qualitative one. The judgment on the inventive step is, similar to the judgment of the inventive action, the result of an assessment.

2. The judgement on inventive step in appeal proceedings against a decision in cancellation proceedings or in the affirmative proceedings for nullity after expiration of a utility model has to be examined according to principles of revision proceedings (continuation of the Senate's decision X ZR 213/01 of March 7, 2006 - "vorausbezahlte Telefongespräche")

3. For the judgement on inventive step, it can be reverted on the basics developed in Patent Law, when taking the differences into consideration that result from the fact that prior art in the law on utility models concerning oral descriptions and concerning the use out of the geographical scope of law on utility models according to § 3 GebrMG are defined deviantly. It is prohibited to judge something obvious to be based on an inventive step for instance under the aspect that a man skilled in the art could not find it offhand on the basis of his common knowledge and when taking prior art into consideration.

4. If in the utility model cancellation appeal proceedings before the German Federal Patent Court it has not been taken into consideration that due to the expiration of the utility model not a cancellation but only the declaration of its nullity results, the decision of the German Federal Patent Court can be amended in the following appellate proceedings. The identification of the need for legal relief can be made by the appellate court itself.

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