EPLAW Patent Blog

DE - Mölnlycke / comment: ruling gives more effect to torpedo actions

German Federal Supreme Court ruling on Mölnlycke case gives more effect to torpedo actions, by Dietrich Kamlah and Christof Höhne, Taylor Wessing

"In a recently published decision (ref. no. X ZR 70/12 – Wundverband), the German Federal Supreme Court ruled that an exclusive licensee cannot bring patent infringement proceedings, if the patentee himself has already brought patent infringement proceedings against the same defendant and the license was granted only after proceedings by the patentee had been initiated. This decision might limit the options of a patentee to sue an infringer who has already filed a “torpedo” action under the same patent."

Read the entire contribution here.

DE - First Munich International Patent Law Conference

On the 14th of June 2013 the first Munich International Patent Law Conference will take place.

The conference is organized by (amongst others) the District Court of Munich I, the Bavarian State Ministry of Justice and the Technical University of Munich. The European Patent Office and the Munich Patent Litigators (a group of presently 18 law firms with a strong patent litigation practise, which was formed for this purpose) support the conference.

This year's topic is: "Calculating Damages in Patent Infringement Cases". Language of the conference is English.

Please find the entire programme and the registration form here.

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NL - FX Prevent v. Wagner Group

FX Prevent B.V. v. Wagner Group GmbH, District Court The Hague, The Netherlands, 8 May 2013, Case No. HA ZA 12-857, with thanks to Carreen Shannon and Charlotte de Boer, Deterink, for sending in the case and a head note in English

Wagner is the holder of a European patent relating to an inerting method for preventing and extinguishing fires in enclosed spaces. After a previous judgment of the District Court The Hague that FX Prevent had infringed Wagner’s patent, FX Prevent appealed that decision (which appeal is still pending) and separately initiated invalidity proceedings before the District Court, arguing that Wagner’s patent was invalid due to lack of novelty and inventive step.

As part of its statement of defence Wagner filed an auxiliary request. Also the amended claims were, however, found to be invalid by the court due to lack of inventive step. The court applied the problem-solution approach and held that if the solution to the posed problem did not already form part of his common general knowledge, the skilled man would have in any event learned that solution from a wide range of prior art documents. Wagner was ordered to pay the full costs of the proceedings.

Read the decision (in Dutch) here.

UK - Phil & Ted’s v. TFK Trends

Phil & Ted’s Most Excellent Buggy Company Limited v. (1) TFK Trends for Kids GmbH (2) Oliver Beger (3) Udo Beger, Patents County Court, London, UK, 8 May 2013, [2013] EWPCC 21

The Patents County Court held that TFK’s patent relating to a baby buggy was invalid.

Phil & Ted’s commenced proceedings for unjustified threats and revocation of TFK’s patent, EP (UK) 1 795 424. TFK responded with a counterclaim for infringement in respect of Phil & Ted’s Promenade buggy which has a seat which transforms into a carry cot and vice versa. Phil & Ted’s denied infringement and alleged claim 1 (the only claim in issue) was invalid for obviousness in light of a Chinese Utility Model Patent (Goodbaby), a UK patent application (Bigo) and common general knowledge based on a product called the Bugaboo Frog.

HHJ Birss QC held that the Promenade buggy fell within the scope of claim 1 of the patent but noted that the points on non-infringement were squeezes on validity.

HHJ Birss QC held that the patent was invalid for obviousness in light of Goodbaby but that the attacks based on Bigo and common general knowledge failed. 

Read the judgment (in English) here.

Head note: Rob Fitt

 

HU - Refusal to withdraw PI after revocation of patent

The Metropolitan Tribunal in Budapest refuses to withdraw preliminary injunctions in the VIAGRA case after the first instance revocation of the patent

Not long after the Metropolitan Tribunal had granted six  preliminary injunctions against distributors of generic versions of VIAGRA (see post of October 2012) the Hungarian Intellectual Property Office (HIPO) revoked the underlying national patent.

Each defendant of the six parallel cases requested the withdrawal of the respective preliminary injunction immediately but the Metropolitan Tribunal Court rejected each request and maintained the injunctions (in one case an out-of-court agreement was reached). The importance of the decision lies in the fact that this is the first time that the first instance revocation of the patent did not prevent the patentee from keeping a preliminary injunction against presumably infringing products. The present report is based on one of the remaining five cases, as the questions dealt with by the court were similar in each proceeding.

UK - HTC v. Apple (Appeal)

HTC Europe Co. Ltd. V. Apple Inc. and Apple Inc. v. HTC Corporation, Court of Appeal, London, UK, 3 May 2013, [2013] EWCA Civ 451

The Court of Appeal allowed in part Apple’s appeal of the decision of the Patents Court that one of its patents was invalid.

The original trial before Mr Justice Floyd concerned four actions between HTC and Apple regarding four patents owned by Apple. Following the judgment, HTC and Apple settled their dispute and so HTC did not take part in the appeal.

The appeal only concerned the validity of two of the Apple patents, EP (UK) 2 098 948 (“the ‘948 Patent) and EP (UK) 1 964 022 (“the ‘022 Patent”). The ‘948 Patent relates to computer devices with touch sensitive screens which are capable of responding to more than one touch at a time and the ‘022 Patent relates to ways unlocking computer devices with touch sensitive screens. The issues before the Court of Appeal were as follows:

EU - Statement of Objections for Motorola on potential misuse of standard-essential patents

Antitrust: Commission sends Statement of Objections to Motorola Mobility on potential misuse of mobile phone standard-essential patents, Brussels, 6 May 2013

The European Commission has informed Motorola Mobility of its preliminary view that the company's seeking and enforcing of an injunction against Apple in Germany on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules. While recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where SEPs are concerned and the potential licensee is willing to enter into a licence on Fair, Reasonable and Non-Discriminatory (so-called "FRAND") terms. In such a situation, the Commission considers at this stage that dominant SEP holders should not have recourse to injunctions, which generally involve a prohibition to sell the product infringing the patent, in order to distort licensing negotiations and impose unjustified licensing terms on patent licensees. Such misuse of SEPs could ultimately harm consumers. The sending of a Statement of Objections does not prejudge the final outcome of the investigation.

Read the entire press release (in English) here.

 

 

 

 

 

 

 

 

NL - Easy Sanitary Solutions v. Blücher

Easy Sanitary Solutions B.V. v. Blücher Metal A/S, District Court The Hage, The Netherlands, 24 April 2013, Case No. HA ZA 12-895, with thanks to Frank Eijsvogels and Christopher Pierce, Hoyng Monegier, for providing the decision

Easy Sanitary Solutions alleged that Blücher infringed its patent on a triangular drain. Blücher argued that the patent was invalid due to lack of novelty and inventive step and that its triangular drain products that are offered for sale in the Netherlands do not infringe the patent.

Blücher's suggestion to not apply the problem-solution approach to inventive step, but a “common-sense approach” was not followed by the Court.The Court found that Blücher’s inventive step arguments were tainted by hind-sight. The Court found that Blücher’s triangular drain products which are offered in the Netherlands infringe the patent, and ordered Blücher to pay the costs of the proceedings.

Read the judgment (in Dutch) here.

CH - Swiss patent Jurisprudence 2012

Swiss Patent Jurisprudence 2012, by Cyrill Rigamonti, Professor of Law, University of Bern

"The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since January 1, 2012. This article reviews and contextualizes the most important patent cases published in 2012 by the Swiss Federal Patent Court and the Swiss Federal Supreme Court. More specifically, the article covers cases on issues such as the evidentiary status of party expert opinions, the formal requirements for requests for injunctive relief, the infringement and non-obviousness tests employed by the Swiss Federal Patent Court, the use of reports and statements from technical judges in lieu of expert opinions, and the procedural devices for the pre-trial taking of evidence, in particular the new patent-specific device of precise description. The author suggests that designing the Federal Patent Court to include technically trained judges may lead to a more automatic adoption of the practices and case law of the European Patent Office. The article concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe."

Read the entire article on SSRN here.