After explaining this decision in some detail the author comments:
"This decision is remarkable. The Supreme Court could have limited itself to ruling that, in the case before it, the Federal Patent Court should have considered the EPO decision. Instead, the Supreme Court established as a rule that courts must consider EPO decisions. Furthermore, the court also held that the same would apply to decisions issued by the courts of other European Patent Convention member states.It's interesting to see how the shall-we-or shan't-we debate about referring to decisions of other jurisdictions and of the EPO is conducted in the major European patent-litigating nations. If any reader fancies doing some comparative research on this topic, leading ideally to an article for the Journal of Intellectual Property Law & Practice (JIPLP), I'll be delighted to hear from him or her.
Unfortunately, the effect of the decision is somewhat mitigated by the Supreme Court's holding that, although the courts are required to consider EPO decisions and those rendered in other European Patent Convention member states, the deviation of a national court from such decisions does not constitute grounds to appeal to the Supreme Court. From the perspective of harmonization, such a ruling might have been desirable".