Kedge v. Aabo & Safeway, President of the District Court of the Hague, The Netherlands, 5 August 2010, Case No. KG ZA 10-721
In its decision d.d. 10 March 2010 (which can be read here), the Court of the Hague ruled that the "fall protections" manufactured by Safeway did not infringe upon Kedge's European patent EP 1 699 991, for a safety device for a fall restraint. Kedge subsequently started preliminary injunction proceedings against Aabo - a distributor of the fall protections manufactured by Safeway - on the basis of a divisional of the '991 patent, i.e. European patent EP 1 803 871 for an object provided with a safety device for a personal fall protection. Safeway joined Aabo in the proceedings.
In its decision d.d. 5 August 2010, the President of the District Court of the Hague ruled that the litigious fall protections did infringe upon Kedge's '871 divisional. According to the President, a crucial limitation of the claims of the '991 patent - based on which in the earlier decision it was held that there was no infringement - was lacking in its '871 divisional. Moreover, the validity attacks against the '871 divisional failed. The President, amongst others, held that the '871 divisional distinguished itself differently from the prior art than the '991 patent. Although the distinguishing feature of the '871 patent was also present in the claims of the '991 patent, it was included there as an intended use, which - following EPO Guidelines - according to the President was not sufficient to provide novelty over the prior art document as long as the skilled man would understand that the product disclosed in the prior art document would be suitable to be used in the same way.
An injunction followed.
Read the decision (in Dutch) here.
Head note: Geert Theuws