EPLAW Patent Blog

SE - Wonderland v. Hilding

Wonderland AS v. Hilding Aktiebolag, Svea Court of Appeal, 11 November 2011, Docket Nos. T 3065-10 / T 3179-10 (joint cases)

On appeal of a District Court of Stockholm decision in joint infringement and invalidity proceedings previously reported on the EPLAW Patent Blog (here) the Svea Court of Appeal has reversed the District Court's decision and declared Wonderland’s European patent valid for Sweden. Unlike the District Court, the Svea Court of Appeal was of the opinion that there was an inventive step. The key differences in the assessment by the Court of Appeal, compared to the assessment by the District Court, was that the Court of Appeal did not consider the common general knowledge of the person skilled in the art sufficient for the invention to be obvious compared to the state of the art at the priority date and neither that the combination of two publications would have led to the invention.

The District Court had also assessed whether the disputed patent had been infringed in an objective manner, based on the hypothetical assumption that the patent was valid. In this respect, the Court of Appeal confirmed the declaration by District Court in an intermediate judgment that the disputed patent had been infringed by Hilding. The remainder of the proceedings in the District Court, including the trial of claims for damages for patent infringement, was stayed awaiting a final judgment on the issue of validity and may now be resumed (subject to any appeal to the Supreme Court).

Read the judgment (in Swedish) here.

Head note: Erik Ficks

NL - Taste of Nature v. Cresco

Taste of Nature Holding B.V. v. Cresco Produktie Maatschappij B.V. et al, District Court The Hague, The Netherlands, 31 January 2012, Case No. 11-1414, with thanks to Thomas Berendsen and Maarten Rijks, Banning, for sending in a translation of the judgment

Both Taste of Nature and Cresco operate in the field of the production and sale of sprouts and seedlings which are edible young vegetable plants. Taste of Nature has developed a seedling of a radish being characterized by a high level of anthocyanin (antioxidant), protected by its European patent EP 1.290.938 (“EP ‘938”), as validated in the Netherlands. The patent inter alia relates to methods for the production of the seedling.

Early December 2011, Taste of Nature initiated Summary Proceedings against Cresco, because of alleged infringement of its patent. The Judge rejected Taste of Nature’s claims because it considered EP ‘938 invalid in view the exclusion of patentability under article 53(b) EPC. In the reasons the Summary Proceedings Judge stated that “it is plausible that under Article 53, opening lines and (b), of the EPC, not only an essentially biological method is unpatentable, such as the “classical breeding” in this case, but also a product directly obtained by using that method, because a method claim also protects the product directly obtained using that method (see Article 64(2) of the EPC).”

In order to further underpin its opinion, the Judge argues that “[i]f it were to be ruled that a product-by-process claim is admissible for the directly obtained product of an unpatentable essentially biological method, that would render the exclusion in Article 53, opening lines and (b), of the EPC as interpreted by the EBA in G1/08 pointless, because in that case the same situation would be involved as if the EBA had considered the process claims admissible, which is not the case.”

Read the decision (in English) here.
Read the decision (in Dutch) here.

Head note: András Kupecz

Young EPLAW 2012 - Mark your Calendar

EPLAW is pleased to announce that the annual Young EPLAW meeting will be held on Monday 23 April 2012 in Brussels.

The Young EPLAW meeting is a get-together organized especially for young patent litigators (up to 36 years) who work in the office of an EPLAW member. It offers an excellent occasion to meet young colleagues from all over Europe.

Further information will follow shortly. The programs of past Young EPLAW meetings can be found on the Eplaw website here.

NL - Lundbeck v. Tiefenbacher / Escitalopram Appeal

Joined cases of H. Lundbeck A/S v. Alfred E. Tiefenbacher GmbH and H. Lundbeck A/S v. Centrafarm Services B.V. and H. Lundbeck A/S v. Ratiopharm GmbH, Court of Appeal The Hague, The Netherlands, 24 January 2012, Case Nos 312468 / HA ZA 08-1827, 314574/HA ZA 08-2142 and 314783/HA ZA 08-2172, with thanks to Marleen van den Horst en Jaap Bremer, BarentsKrans, for sending in the judgment and a summary in English

The Court of Appeal in the Hague has decided that Lundbeck’s patent for escitalopram, which patent had been invalidated in its entirety by the District Court in first instance, is partially invalid. The product claims for the active substance escitalopram were nullified for lack of inventive step, whilst the method claim describing a specific procedure for the synthesis of escitalopram and the claim relating to an intermediate product were considered valid. The SPC-specific nullity arguments were dismissed.

Read the entire summary in English here.

Read the judgment (in Dutch) here.  

NL - Lübbers v. Relco and annular gap injectors

Lübbers Anlagen und Umwelttechnick GmbH v. Relco Wet & Dry B.V., accelerated patent proceedings before the District Court of The Hague, the Netherlands, 25 January 2012, Case No. 387236 / HA ZA 11-451 
 


On 25 January 2012, the District Court of The Hague ruled in the case brought by Lübbers against Relco. Lübbers acted as the exclusive licensee for EP 1 105 202 (relating to an annular ring injector aimed at cleaning air purification chambers), which patent is owned by Dutch patent holder and licensor Korporam B.V. Lübbers sought an injunction against Relco for patent infringement, but saw the invoked patent partially invalidated instead. Relco attacked the patent on grounds of lack of clarity / insufficiency, lack of novelty and lack of inventive step.

The Court ruled that although lack of clarity arguments under Article 84 EPC are not as such admissible in national proceedings, but that such arguments can indeed lead to invalidation on grounds of insufficiency (Article 83 EPC). Claim 4 is invalidated for that reason.

FR - Novartis v. Sanofi / Valsartan (ex parte)

Novartis AG and Novartis Pharma v. Sanofi-Aventis France, Sanofi-Aventis Winthrop Industries and Zentiva K.S., the President of the Court of First Instance (ex parte preliminary injunction), Paris, France, 27 October 2011, Case No. 11/15302, with thanks to Pauline Debre, Bird & Bird, for providing a summary and comments in English

On 27 October 2011, the President of the Court of First Instance in Paris ordered ex parte preliminary injunctions against Sanofi-Aventis France, Sanofi-Aventis Winthrop Industries and Zentiva K.S. (hereinafter "Sanofi"), prohibiting the Valsartan generic Zentiva from being sold on the French market.

This ruling is important in two respects:

1. It is one of the first decisions in which an ex-parte preliminary injunction has been ordered in a patent case in France; and

2. It seems to conflict with a recent decision of the Court of Appeal in Paris on the extent of protection given by supplementary protection certificates.

Read the entire summary below the break:

 

NL - Wagner v. Prevent

Wagner Group GmbH v. FX Prevent B.V., District Court The Hague, The Netherlands, 23 November 2011, Case No. 11-458
 
In its judgment of 23 November 2011, the District Court of The Hague ruled that FX Prevent infringed upon claim 1 and 10 of Wagner’s European patent EP 1 062 005. This patent relates to a fire extinguishing method by way of lowering the oxygen amount in the air of the closed room in two steps. FX Prevent argued that Wagner’s patent  is not novel and did not involve an inventive step, however failed to prove it. According to the court FX Prevent did not substantiate these argument in any way. No dated documents were submitted. Moroever, the argument that the patent did not involve any inventive step was raised for the first time during the oral hearing, which is too late. FX Prevent did not deny the infringement. The court therefore ruled that FX Prevent has to cease and desist from infringing the patent.

Read the judgment (in Dutch) here.

Headnote: Wim Maas

FR - Sandoz v. Eli Lilly

SAS Sandoz v. Eli Lilly and Company, Court of Appeal of Paris, France, 13 January 2012, Case No. 10/17727, with thanks to Dominique Menard and Stanislas Roux-Vaillard, Hogan Lovells, for providing the judgment and an extended summary in English

On 13 January 2012, the Court of appeal of Paris confirmed the judgment which found that the French part of Eli Lilly's patent No. EP 0 577 303 regarding a process for stereoselective glycosylation shows inventive activity, is sufficiently disclosed and consequently valid. The failing generics company is ordered to pay half a million Euros in attorney's fees.

Read the entire summary (in English) here.

Read the judgment (in French) here.

UK - Apimed Medical Honey v. Brightwake Limited

Apimed Medical Honey Limited v. Brightwake Limited, Court of Appeal, London, UK, 20 January 2012, Case No. [2012] EWCA Civ 5

The patent claimed a composition (commercially available as Algivon) for a wound dressing combining honey with a "gelling agent". The gelling agent increases viscosity to the extent that it results in a flexible sheet or pliable putty which can be moulded to fit the wound, providing a way to retain the honey at the wound site. All but one of the examples in the patent relied on sodium alginate as "a gelling and viscosity increasing" agent. Apimed brought an infringement claim against the manufacturer, Brightwake, of an allegedly infringing product. Brightwake’s product was a sheet formed from calcium alginate fibres and then coated with honey. Brightwake counterclaimed for revocation of the patent on the grounds of lack of novelty and obviousness. 

Held: on appeal, overturning the Patents County Court's finding of obviousness, Kitchin LJ focussed on the fact that the prior art paper taught solid honeys may be liquefied by warming and semi-solid honeys may often be liquefied by stirring. As such, the paper contemplated that the honey should be softened. This was contrary to the teaching of the patent. It also described the spreading of honey on a dressing pad or, alternatively, that it should be squeezed directly into a deep wound. There was no description of what may be said to be the heart of the invention of the Patent, namely the use of a gelling agent to increase the viscosity of the honey to such a degree that it can be formed into a flexible sheet or a pliable putty without the need for any separate dressing at all. There had been an error of principal by the first instance judge, because he had failed to identify the above differences between the prior art and the invention and whether those differences, without any knowledge of the invention, would have been obvious to the person skilled in the art.

NL - Sanofi Aventis v. Ratiopharm / Clopidogrel and aspirin

Sanofi Aventis v. Ratiopharm GmbH and Ratiopharm Nederland B.V., Court of Appeal The Hague, the Netherlands, 1 November 2011, Case No. 200.068.342/01
 
In its judgment of 1 November 2011, the Court of Appeal of The Hague has confirmed the District Court’s decision that Sanofi-Aventis’ patent EP 0 881 901 relating to a pharmaceutical composition comprising a combination of the active substances clopidogrel and aspirin was invalid for lack of inventive step.  Clopidogrel and aspirin have a synergistic effect on the inhibition of blood platelet aggregation, which means the combination product is useful for the treatment of thrombosis.

The Court dismissed Ratiopharm’s argument on claim construction. According to the Court, the term “composition containing ” (both clopidogrel and aspirin) did not necessarily mean that both active substances had to be included in one dosage form. However, the Court did agree with Ratiopharm that the patent was obvious, in light of the prior art publications that indicated to the skilled person that a combination of ticlopidine, an active substance with properties similar to clopidogrel, and aspirin had a synergistic effect on blood platelet aggregation. The skilled person would have had an incentive to replace ticlopidine with clopidogrel, in light of other prior art documents indicating that clopidogrel had shown better results and less side-effects than ticlodipine.

Sanofi-Aventis’ argument that the skilled person would not consider combining the two active substances, in light of the known risk of extended bleeding time, was dismissed. The Court held that the skilled person would not be deterred by the data relating to extended bleeding time from using the combination product, but would weigh the severity of the condition to be treated and the known potential benefits of the combination product against the known risks.

Read the decision (in Dutch) here.  

Head note: Jaap Bremer