EPLAW Patent Blog

UK - Medeva BV v. The Comptroller General of Patents / SPC

Medeva BV v. The Comptroller General of Patents, High Court of Justice, Chancery Division, Patents Court, London, UK, 27 January 2010, Case No. [2010] EWHC 68 (Pat)

The High Court has dismissed an appeal against the UK IPO's decision to refuse five applications for supplementary patent certificates ("SPCs") relating to a patent claiming a method of making vaccines against whooping cough using just two active ingredients. Four of the applications were dismissed because the relevant products, each containing additional active ingredients to the two described in the patent, failed to satisfy the requirement in Article 3(a) of Regulation (EC) No 469/2009 ("the SPC Regulation") that they be "protected by a basic patent in force". The fifth application was dismissed because the relevant product had never received the valid marketing authorisation required by Article 3(b) of the SPC Regulation. The High Court also held that in doing so when only an expression of opinion of the examiner, and no decision, had been issued, Medeva BV prematurely and improperly filed its notice of appeal.

Read the judgment (in English) here.

Dr. J. Alingh Prins Fund

The EPLAW Patent Blog is grateful for the donation made by the Dr. J. Alingh Prins Fund. This fund was founded in 1953 with the goal: "To promote and disseminate knowledge and science concerning industrial property, and to stimulate the development of the law relating to industrial property in The Netherlands."

The fund was named after Dr. J. Alingh Prins (1875-1963), chairman of the Dutch Patent Council (Octrooiraad) from 1925 until 1940. Alingh Prins studied Math and Physics, and had a PhD in Law. Recently, the fund was transferred to the Dutch Group of the AIPPI, the VIE (Vereniging Industriële Eigendom).

NL - Dutch Court stays proceedings in transit cases until the Court of Justice decides on manufacturing fiction

Cybergun S.A. v. Koninklijke Luchtvaart Maatschappij N.V. and Wargaim LLC, manufacturing fiction, The Hague District Court, The Netherlands, 20 January 2010, Docket No. 330510 / HA ZA 09-528

If - in cases where transshipped goods are blocked by customs - the legitimacy of the application of the manufacturing fiction is contested, the The Hague District Court will stay the proceedings until the decision of the Court of Justice in the cases C-495/09 (Nokia) and C-446/09 (Philips). Blocked goods will not be released, as the court indicates that – pending the proceedings before the Court of Justice – it will follow its earlier case-law with respect to the application of the manufacturing fiction.

Read the judgment (in Dutch) here.

UK - Nokia v. HMRC / Manufacturing Fiction - Question referred

Nokia Corporation v. Her Majesty's Commissioners of Revenue & Customs and the International Trade Mark Association (as proposed intervener), Manufacturing Fiction / Referral to the Court of Justice, Court of Appeal England and Wales, London, UK, 9 November 2009, with thanks to Frank Eijsvogels, Howrey

The court of Appeal asks the following question:

"Are non-Community goods bearing a Community trade mark which are subject to customs supervision in a Member State and in transit from a non-Member State another non-Member State capable of constituting "counterfeit goods" within the meaning of Article 2(1)(a) of Regulation 1383/2003/EC of there is no evidence to suggest that those goods will be put on the market in the EC, either in conformity with a customs procedure or by means of an illicit diversion."

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

Read a previous post on EPLAW Patent Blog here.

ES - Delay on the effectiveness of European Patents until actual publication of the translation by the SPTO

Comment on Envac Centralsug AB v. Ros Roca, S.A., Court of Appeal (15th Section), Barcelona, Spain, 23 October 2008, with thanks to Álvaro Velázquez and Luis Fernández-Novoa Howrey Martinez Lage 

"Recent decisions of the Commercial Courts of Barcelona specialized in Patent cases, like that of Court No. 3 of 30 March 2009, are relying on the findings of a late 2008 decision of the Court of Appeals of Barcelona to delay the effectiveness of granted European Patents (EP), even dismissing actions brought for infringements taking place before the publication of the Spanish translation by the SPTO. 

"This case comment analyzes the different key aspects which the cited Decision of the Court of Appeals of Barcelona, which is one of the best IP Courts in Spain, overlooked in interpreting the exact date triggering the effectiveness of European Patents in Spain, applying a limiting interpretation of the EPC. Unless they are finally reversed by the Supreme Court, the findings of this decision shall undoubtedly affect future patent enforcement in Spain."

Read the entire comment (in English) here.
Read the judgment (in Spanish) here. 
 

UNION's Spring 2010 Round Table - 'How to cope with patent scope'

Union's Spring 2010 Round Table will deal with the topic:  "How to cope with patent scope - Literal interpretation of claims throughout Europe". The round table will be held at the German Patent Office on 26 February 2010.

 

"The subject specifically aims at the literal interpretation of claims, because this forms the basis for any grant procedure and infringement case. It appears that examiners interpret claims differently than judges, and judges from different countries differ in their interpretation as well. Accordingly, well-known judges from France, Germany, the UK, and the Netherlands will present their views on this subject. A member of the Board of Appeal of the EPO and two academics will deliver speeches as well. Aspects that the speakers will address include the effect of claims referring to an intended use, of the technical contribution and inventive concept beneath the mere words of the claims, of the embodiments, of unclear terms, and of the prior art. Finally, the effect of file wrapper estoppel during infringement cases will be discussed."

More information may be found on the website of the Union of European Practitioners in Intellectual Property. The registration deadline is 12 February 2010.

The programme and registration form are available here.

NL - Street Surfing v. X (ex parte)

Street Surfing LLC v. X, The Hague District Court, The Netherlands, ex parte injunction, 8 January 2010, Docket No. KG RK 10-02

The court grants an ex parte injunction (wave boards EP 1 511 541). The order is not declared enforceable on any day and at any time  before execution has been issued ('uitvoerbaar op de minuut, en op alle dagen en uren'). This, since (i) it was not sufficiently substantiated that the judgment should be enforceable during weekends, holidays, etc. and also considering the fact that X should be given sufficient time to comply with the order, and (ii) Street Surfing  will receive an executable form of the order ('grosse') and thus has no interest in an order declared enforceable before execution has been issued ('uitvoerbaar op de minuut').

Read the order (in Dutch) here.

DE - Recent relevant cases

A set of recent relevant German cases (listed below) has been added to the blog. The posts are published on the date of the judgment. With thanks to Jan Dombrowski, CMS Hasche Sigle

Mannheim Regional Court, 27 February 2009
DE - Standards and FRAND
DE - Infringement / Patent Troll
DE - Mannheim / determining validity before expiry of opposition time limit

Düsseldorf Regional Court, 17 March 2009
DE - Italian Torpedo

NL - Metaco v. Schelfhaut N.V.

Metaco Inc. v. Schelfhaut N.V., preliminary injunction proceedings, The Hague District Court, 13 January 2010, Docket No.352478 / KG ZA 09-1580 

The judge confirms that a cease and desist declaration is only binding to the parties and not binding to a natural or legal person signing the cease and desist declaration in the name of one of the parties. European Patent EP 0 549 209 B1 on 'pleated screens' not infringed (by equivalence).

Read the judgment (in Dutch) here.

NL - Programme AIPPI Zeist 10 March 2010

The programme of the annual meeting of the Dutch AIPPI group in Zeist is now available. To view the programme, click here.