Occlutech International AB v. AGA Medical Corporation, District Court The Hague, 12 September 2012, case/docket no. 407582 / HA ZA 11-2682
Occlutech seeks a declaratory judgment that its devices do not infringe AGA's patent for septal occluding devices. In short, the patent relates to a 'dumbbell' shaped device made from a tubular braid, in which at least one of the discs is cupped towards the other.
According to Occlutech it would be an essential feature of the invention that 'each end [of the device is] contained by means for securing each end'. Because this feature is not present in the granted claims, these would encompass added-subject matter. Since (i) the application would also disclose a device with only one end containing securing means (meaning that the feature would not be essential), (ii) the feature would not relate to the technical problem and (iii) because it can be removed without modification of other features, the court finds that the removal of this feature does not constitute added subject matter. These criteria are derived from the EPO Guidelines for Examination. Further added matter arguments of Occlutech are also rejected, as well as Occlutech's arguments in relation to insufficient disclosure and inventive step.
Most arguments of Occlutech in relation to public prior use are rejected because the concerned persons were bound by (implicit) confidentiality obligations or because people could not have derived the relevant features from such prior disclosure. However, Occlutech also offered to hear a physician from Bratislava in relation to the implantation of the devices in three patients in 1995 which would constitute public prior art. This offer is allowed and the court will proceed to hear said physician.
Occlutech also claimed that AGA should be ordered to provide documents in relation to the tests with the device before the priority date. The claim is largely rejected because it is not sufficiently specified, except for one invoice which is mentioned in one of the declaration submitted by AGA. AGA is ordered to produce this document.
Read the decision (in Dutch) here.
Head note: Paul van Dongen
Occlutech seeks a declaratory judgment that its devices do not infringe AGA's patent for septal occluding devices. In short, the patent relates to a 'dumbbell' shaped device made from a tubular braid, in which at least one of the discs is cupped towards the other.
According to Occlutech it would be an essential feature of the invention that 'each end [of the device is] contained by means for securing each end'. Because this feature is not present in the granted claims, these would encompass added-subject matter. Since (i) the application would also disclose a device with only one end containing securing means (meaning that the feature would not be essential), (ii) the feature would not relate to the technical problem and (iii) because it can be removed without modification of other features, the court finds that the removal of this feature does not constitute added subject matter. These criteria are derived from the EPO Guidelines for Examination. Further added matter arguments of Occlutech are also rejected, as well as Occlutech's arguments in relation to insufficient disclosure and inventive step.
Most arguments of Occlutech in relation to public prior use are rejected because the concerned persons were bound by (implicit) confidentiality obligations or because people could not have derived the relevant features from such prior disclosure. However, Occlutech also offered to hear a physician from Bratislava in relation to the implantation of the devices in three patients in 1995 which would constitute public prior art. This offer is allowed and the court will proceed to hear said physician.
Occlutech also claimed that AGA should be ordered to provide documents in relation to the tests with the device before the priority date. The claim is largely rejected because it is not sufficiently specified, except for one invoice which is mentioned in one of the declaration submitted by AGA. AGA is ordered to produce this document.
Read the decision (in Dutch) here.
Head note: Paul van Dongen
Comments