EPLAW Patent Blog

UK - Brigade v. Amber Valley

Brigade (BBS-Tek) Limited v. Amber Valley Limited, Patents County Court, HH Judge Birss QC, 19 April 2013, London, UK, Case No. [2013] EWPCC 16

In this judgment, HH Judge Birss QC has found the Claimant’s (“Brigade”) UK Patent No. 2,318,662 (“the Patent”) partially valid and infringed by the Defendant’s (“Amber Valley”) vehicle reversing alarm product called Ecolarm.

The Patent relates to an alarm (or other device) that enables an individual to locate a given object and take appropriate action, and the use of such an alarm as a locating device, the core idea of the invention being an alarm in which the sound emitted is broad band noise (e.g. white noise). Tonal sounds, even complex tonal sounds, were deemed not to be broad band noise, as construed in the context of the Patent.

In the course of the proceedings, Brigade unconditionally applied to amend the Patent effectively limiting the claimed devices (and claimed use thereof) to “indicating” devices or vehicle sirens. There was no dispute as to the allowability of the amendments. Amber Valley challenged the validity of the Patent (as amended) on the grounds of added matter, anticipation and obviousness.

NL - Ajinomoto v. Global et al.

Ajinomoto v. Global Bio-Chem Technology, Helm et all. District Court The Hague, The Netherlands, 20 March 2013, Case No. C/09.268116 / HA ZA 06-2131

Ajinomoto is the proprietor of EP 0 796 912 relating to a “novel lysine decarboxylase gene and process for producing L-lysine”. Both Ajinomoto and defendants Global et al. produce and sell L-lysine. Global et al. claim that the L-lysine produced by them is produces using fermentation methods with micro-organisms. On 20 March 2013, the District Court of The Hague ruled that EP ‘912 was valid, in spite of Gobal et al.’s arguments based on lack of novelty, obviousness, insufficient disclosure and added matter, and it ruled that Global et al. had infringed the patent.

UK - AP Racing v. Alcon Components

AP Racing Limited v. Alcon Components Limited, Patents County Court, London, UK, 5 February 2013, [2013] EWPCC 3

The Patents County Court held that Alcon had infringed AP Racing’s patent relating to brake callipers used in racing cars but the patent was invalid for added matter.

AP racing commenced infringement proceedings against Alcon in respect of its patent, GB 2 451 690, relating to brake callipers used in racing cars. Alcon denied infringement and counterclaimed that the patent was invalid for obviousness, insufficiency and added matter. AP Racing alleged that various Alcon products infringed the patent but there were 5 specific shapes of callipers in issue. HHJ Birss QC held that four of the five shapes infringed the patent.

HHJ Birss QC rejected the invalidity attacks in respect of insufficiency and obviousness but held that the patent was invalid for added matter as a particular feature of claim 1 was not unambiguously disclosed in the application as filed.

Read the judgment in English here.

Head note: Rob Fitt

NL - Visys / Best

Visys N.V. v. Best N.V., District Court of the Hague, 17 October 2012, Case/Docket no. 410962 / HA ZA 12-85

Visys and Best are competitors in the laser sorter industry. Visys seeks annulment of the patent of Best on several grounds, or, alternatively, a declaratory judgment of non-infringement. Visys' sorting machine has distribution surface with a concave shape with channels in the longitudinal direction, whereas the patent of Best relates to machines having distribution surface with a smooth convex shape.

The claims of the patent were altered in such a way that an feature describing the convex shape of the distribution surface was deleted. In proceedings in Belgium, Best would have alleged that the patent also encompassed sorting machines having a concave distribution surface. In this case, the court rules that the deletion of said feature amounted to added subject-matter, since the patent would now also encompass concave surfaces, whereas only convex surfaces are disclosed in the original application. It would not be directly and unambiguously clear for the skilled person that also surface having other shapes than convex would fall within the scope of the invention. An auxiliary request filed by Best which again added said feature is allowed. A claim directed at a machine having a straight surface was invalidated. The patent is maintained taking into account these amendments.

Other added matter arguments of Visys were rejected, as well as their arguments with regard to priority/novelty, inventive step and insufficient disclosure.

With regard to the declaratory non-infringement claim, the court ruled that Visys has no cause of action, because it should have been evident that Visys' laser sorters do not fall within the scope of the patent, which was also confirmed by Best.

Read the entire decision (in Dutch) here.

Head note: Paul van Dongen

UK - Vernacare v. Environmental Pulp Products

Vernacare v. Environmental Pulp Products Limited, Patents County Court, London, UK, 19 July 2012, [2012] EWPCC 41

The Patents County Court held that Vernacare’s patent was valid and infringed by Environmental Pulp Products (EPP).

Vernacare’s patent, GB 2 446 793, relates to disposable washing bowls made of paper pulp which are used in hospitals and nursing homes. Vernacare alleged that the bowls sold by EPP infringed the patent. EPP had stopped selling their Version 1 bowl and had replaced this with Version 2. EPP had plans to replace Version 2 with Version 3 and denied that Version 2 or Version 3 infringed the patent. EPP counterclaimed that the patent was invalid for obviousness over the cited prior art and common general knowledge. EPP also alleged the patent was invalid for added matter.

EPP admitted that the Version 1 bowl infringed the patent and His Honour Judge Birss QC held Version 2 infringed as well. Version 3 was held not to infringe as it did not have the claimed recesses.

HHJ Birss QC rejected the obviousness attack based on the Chaplin  and Zincone prior art. HHJ Birss QC noted the attack based on common general knowledge alone was probably EPP’s strongest but it also failed.

HHJ Briss QC rejected the added matter attack and held that the disclosure of the patent was the same as the disclosure of the application. Although there was a small degree of broadening of language this was in respect of a broader claim and not a broader disclosure.

Read the judgment in English here.

Head note: Rob Fitt

NL - AGA v. Occlutech

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

UK - Mylan v. Yeda

Generics [UK] Limited (trading as Mylan) v Yeda Research and Development Co. Ltd & Anor [2012] EWHC 1848 (Pat), 11 July 2012, Patents Court, Arnold J.

In this action the Claimant (“Mylan”) sought revocation of European Patent (UK) No. 0 762 888 (“the Patent”) and a declaration of non-infringement.  The First Defendant (“Yeda”) and the Second Defendant (“Teva”) were respectively the proprietor of, and the exclusive licensee under, the Patent. The Patent relates to a material known as copolymer-1, a polymer composed of amino acids alanine, glutamic acid, lysine and tyrosine in a particular ratio. The claims protect Copolymer 1 in a specified molecular weight range, and use of this for the treatment of multiple sclerosis (“MS”). Teva sells a product which it claims is protected by the Patent under the trade mark Copaxone (non-proprietary name glatiramer acetate) for the treatment of relapsing-remitting MS.

The action raised a large number of issues: whether the claims are entitled to the first claimed priority date; whether the Patent is invalid for obviousness over the prior art; whether the Patent is invalid for obviousness as making no technical contribution, but rather being an arbitrary selection from known copolymer-1 material; whether the Patent is invalid for insufficiency because the claims are ambiguous; whether the Patent is invalid for insufficiency on classical grounds; whether the Patent is invalid for insufficiency because it makes no technical contribution; whether the Patent is invalid for added matter; and whether the sale of Mylan’s glatiramer acetate product would infringe any of the claims of the Patent.

In respect of these issues it was held: none of claims 2-3 and 5-12 is entitled to priority from the Priority Document; none of the claimed inventions is obvious in the light of the prior art, Teitelbaum 1971, Bornstein 1987 or Johnson 1994; the product claims are not obvious as being an arbitrary selection; the Patent is not insufficient in any of the ways alleged; none of the claims is invalid for added matter; and; the proposed glatiramer acetate product would infringe the Patent.

UK - Gedeon Richter v. Bayer Pharma

Gedeon Richter plc v. Bayer Pharma AG, Court of Appeal, London, UK, 7 March 2012, [2012] EWCA Civ 235

Gedeon Richter (“Richter”) commenced revocation proceedings in respect of two of Bayer’s patents, EP (UK) 1 380 301 (“’301) and EP (UK) 1 598 069 (“’069”). Both patents related to immediate release formulations of the steroidal hormones drospirenone and ethinylestradiol for use as oral contraceptives. At trial, Mr Justice Floyd held:

(a)  claims 1 and 19 of ‘069 were invalid for obviousness but permitted amendment to delete claims 1 to 5 and make claim 19 dependent of claim 6

(b)  Claim 6 of ‘069 was not invalid for obviousness

(c)  Claim 1 of ‘301 was not invalid for obviousness

(d)  ‘301 and ‘069 were not invalid for added matter

Richter appealed the findings (b), (c) and (d) to the Court of Appeal but the appeal failed.

The Court of Appeal rejected the allegations of added matter against both patents as the common parent application taught generally that rapid dissolution ensured “good bioavailability”.

The Court of Appeal also rejected Richter’s obviousness attack on both patents as there was no evidence that the skilled person would have read the contents of the relevant prior art and there was no, or only the slightest, expectation of success based of the prior art.

Read the judgment in English here.

Head note: Robert Fitt

UK - Nokia v IPCom

Nokia GmbH v IPCom GmbH & Co. KG, High Court, 20 February 2012, Case No. HC09C04868, Neutral Citation Number: [2012] EWHC 225 (Pat)

In the latest of a long line of patent cases between IPCom and Nokia, Mr Justice Floyd held that IPCom’s proposed amendments to its patent be allowed in order to preserve validity but that none of the claims of the amended patent was in any event essential to the UMTS, GSM or LTD mobile telecommunications standards. The case was relatively unusual in that neither infringement nor validity of the patent as granted were directly in issue. Rather IPCom sought to maintain validity based on three alternative sets of amendments, whilst Nokia sought a declaration that the patent as granted or as proposed to be amended was not essential to various standards, implying that it was possible to sell a device which conformed to that standard without infringing the patent.

EPO - News from the Enlarged Board of Appeal of the EPO

EPO - News from the Enlarged Board of Appeal of the EPO (Oral proceedings in cases G 2/07 and G 1/08 and two new referrals to the EBA) reported by Rudolf Teschemacher, Bardehle & Pagenberg

EPO, Enlarged Board of Appeal
Oral proceedings in cases G 2/07/BROCCOLI and G 1/08/TOMATOES

The oral proceedings were accompanied by protests outside the EPO-building of groups opposed to patents in the field of plants. The public interest in the cases is also illustrated by some 130 amicus curiae briefs filed in consolidated proceedings G 2/07 and G 1/08.

The points of law referred to the Enlarged Board of Appeal in decisions T 83/05 (OJ EPO 2007, 644) and T 1242/06 (OJ EPO 2008, 523) concern the scope of the exclusion from patentability for essentially biological processes for the production of plants in Art 53 b) EPC. Previous case law held that the question whether or not a process is to be considered “essentially biological” within the meaning of this provision has to be assessed on the basis of the invention as a whole taking into account the totality of human intervention and its impact on the result achieved. In 1999, a provision implementing Art. 2 (2) of the EU Biotechnology Directive was introduced into the Implementing Regulations to the EPC. Rule 26 (5) EPC stipulates that a process for the production of plants is essentially biological if it consists entirely of natural phenomena such as crossing or selection.