MANUFACTURER WAS ENTITLED TO PURCHASE RIGS SUBJECT TO THE LICENCE AND MOUNT THEM ON HIS BOARDS , WHICH IMPLIES THAT THE PATENT WAS NOT UNDERSTOOD TO COVER THE ENTIRE SAILBOARD . BY A DECISION OF 28 NOVEMBER 1979 , THE BUNDESPATENTGERICHT ( FEDERAL PATENTS COURT ) DISMISSED A NUMBER OF OPPOSITION PROCEEDINGS BASED ON THE EXISTING STATE OF TECHNICAL KNOWLEDGE BUT SUBSTITUTED FOR THE PRINCIPAL CLAIM A SECONDARY CLAIM ALSO REFERRING TO A RIG FOR A SAILBOARD . THE DECISION OF THE BUNDESKARTELLAMT ( FEDERAL RESTRICTIVE TRADE PRACTICES AUTHORITY ) OF 30 SEPTEMBER 1981 , RELATING TO THE COMPATIBILITY OF WINDSURFING INTERNATIONAL ' S LICENSING AGREEMENTS WITH GERMAN COMPETITION LAW , IS ALSO BASED ON THE FINDING , FOR WHICH IT GIVES DETAILED REASONS , THAT THE PATENT GRANTED TO WINDSURFING INTERNATIONAL COVERS ONLY THE RIG AND NOT A COMPLETE SAILBOARD . ON 10 DECEMBER 1981 , THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ), ON AN APPEAL RELATING TO AN ACTION FOR PATENT INFRINGEMENT BROUGHT BY WINDSURFING INTERNATIONAL AGAINST A MANUFACTURER OF SAILS SPECIFICALLY DESIGNED FOR SAILBOARD RIGS , REFERRED TO THE FREELY AND UNIVERSALLY ROTATABLE AND PIVOTABLE MAST , THE SAIL AND THE SPLIT BOOM ( WISH-BONE ) AS BEING PARTS OF THE PATENTED COMBINATION . FINALLY , IN THE TEST CASE BROUGHT BY WINDSURFING INTERNATIONAL , THE COURTS AT FIRST AND SECOND INSTANCE REJECTED THE APPLICANT ' S SUBMISSIONS ON THE SCOPE OF THE GERMAN PATENT .
34 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION WAS RIGHT IN TAKING THE VIEW THAT IN THE PERIOD DURING WHICH IT BEGAN ITS INVESTIGATION INTO WINDSURFING INTERNATIONAL AND ADOPTED THE CONTESTED DECISION , THERE WAS NOTHING IN THE WORDING OF THE PATENT OR THE INTERPRETATIONS GIVEN TO IT BY GERMAN AUTHORITIES AND COURTS TO JUSTIFY THE CONTENTION THAT THE PATENT COVERED A COMPLETE SAILBOARD . THERE HAS NOT BEEN ANY CHANGE IN THE POSITION SINCE THEN .
35 NOR CAN IT BE ACCEPTED THAT , AS WINDSURFING INTERNATIONAL ARGUES , THE COMPONENTS OF THE SAILBOARD OTHER THAN THE RIG ARE AUTOMATICALLY COVERED BY THE PATENT INASMUCH AS THEY CONSTITUTE COMPONENTS WHICH ARE INDISPENSABLE FOR THE WORKING OF THE INVENTION . AS IS SHOWN BY THE DECISIONS OF GERMAN COURTS CITED BY THE APPLICANT , ONLY THE COMPONENTS COMPRISED WITHIN THE INVENTIVE STEP ARE PROTECTED , WHEREAS IN THIS CASE THE BOARD HAS NEVER BEEN FOUND TO SHOW ANY INVENTIVE FEATURE IN COMPARISON WITH THE PREVIOUS STATE OF THE ART .
36 THE CLAUSES CONTAINED IN THE LICENSING AGREEMENTS , IN SO FAR AS THEY RELATE TO PARTS OF THE SAILBOARD NOT COVERED BY THE GERMAN PATENT OR INCLUDE THE COMPLETE SAILBOARD WITHIN THEIR TERMS OF REFERENCE , CAN THEREFORE FIND NO JUSTIFICATION ON GROUNDS OF THE PROTECTION OF AN INDUSTRIAL PROPERTY RIGHT .
IV - APPRAISAL OF THE LICENSING AGREEMENTS IN THE LIGHT OF ARTICLE 85 ( 1 ) OF THE EEC TREATY
A - RESTRICTION OF COMPETITION
37 IT IS THEREFORE NECESSARY TO EXAMINE WHETHER THE CLAUSES REFERRED