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18/08/2015

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I had a look in the decision of the Dutch court, and I find it somehow irritating. There are a plurality f reasons for this.
The present decision also raises another fundamental point with respect to the coexistence of the Boards of Appeal of the EPO and the UPC.

1. First, the present decision is a perfect example of ex-post facto analysis. All the elements of the puzzle are know in one or the other document, and then everything appears obvious.
1.1 Where is the multiple layer in the Rodsten or Lo-Fric catheter? That other layers can be used is one fact, but I fail to see that a multiple layer pouch is used in Rodsten. For reasons of sterilisation this is certainly not the case. Rodsten and Lo-Fric are gas sterilised, and this speaks again the use of a multi layer pouch. The Coloplast catheter is not gas sterilised, as gas sterilisation would not result in the shelf life to be expected (although this is not in the claim, but a consequence of the claimed pouch).

1.2 Simply stating that it is obvious to store the wetting agent in the ready to use catheter is an obvious improvement is simply not correct. That the wish was present to add the wetting solution into the catheter package does not immediately mean that it was obvious to do it the way it is now claimed. The court fails to give any compelling reason to do so.

2. Secondly, it is also surprising that the Dutch court brings in the question of sufficiency. If it was correct to state that the patent was once revoked due to lack of sufficiency, it should be kept in mind that this reason (as well as added matter) was eventually dismissed by the Board. Why is the Dutch court broaching the subject, as it was not in debate? You cannot imply that sufficiency might be at stake and at the same time decide on the presence or absence of inventive step.

The mention of the patent on sterilisation is also odd. Is the 729 patent at stake or another one?


3. Last but not least, what I consider far more annoying is that the Dutch Court presupposes that the patent will be revoked in appeal. This is anything but correct, especially in view of the poor value of the reasoning concluding to a lack of inventive step. I hope, should the Board of Appeal come to the conclusion that the patent ought to be revoked, it will not use such a coarse form of reasoning.

4. I find it further very dangerous for a national court to attempt to influence a Board of Appeal of the EPO, the more so since the German and the British Court have decided to stay the proceedings in order to wait vor a decision of the Boards of Appeal. The Austrian court might be encouraged not to stay in view of the situation created by the Dutch court.

5. As the UPC will probably be manned by judges of the kind we find in the Dutch court, this does not augur well for proceedings before the UPC.

The problem-solution-approach is not a condition set by the EPC. That it is not palatable to some national courts is not at stake here. Whatever method is used in order to decide upon inventive step, it should be the result of a continuous reasoning without any gaps in reasoning. It is difficult to say that this judgement corresponds to this standard. Claiming that when the features as such are in all the documents, then there is a lack of inventive step is far fetched and not admissible. For this token, there will not be many patents granted or maintained in the future, not only by the UPC, but any national court.

The problem-solution-approach is the result of a long standing development of case law and has been proved useful in avoiding the type of ex-post facto reasoning we are faced in the present decision.

6. The problem of diverging case law has been carefully ignored by all the proponents of the UPC. It might even become worse once the European Court of Justice will decide on patent law. Even if mechanisms have been devised to avoid this occurence, the EuCJ will certainly not refrain from doing it, should it think it ought to.

No provision has been found in order to find a solution in case of diverging case law between the UPC and the Boards of Appeal of the EPO. The UP is a patent granted by the EPO, hence the examiners have to abide by the case law of the Boards of Appeal, and cannot follow case law from any other court.

This might be one of the nails in the coffin of the UPC as such a solution is not tenable for the industry.

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