Clyde Bergemann GmbH v. Magaldi, Court of Appeal The Hague, 13 July 2010, Case No. 200.023.759/01
Patent on a system for the extraction of ash from a steam generating boiler. Bergemann argues a lack of inventive step of Magaldi's patent based on a combination of two prior art documents. In the first instance this argument was refused because of a violation of the principles of due process of law, since it was only argued at the hearing. The combination consists of an earlier patent application and a brochure contained in its prosecution file.
Magaldi argues that the (non-digital) prosecution file was not publicly accessible before the priority date of the patent, relying on case T 413/99 (in which the TBA ruled that a thesis in a library that was not yet catalogued was not part of the prior art). The Court of Appeal rules that the fact that the public does not know in advance what the contents of a prosecution file are, does not alter the fact that it is publicly accessible and thus prior art. The Court of Appeal then held that claim 1 of the patent was invalid for lack of inventive step based on this combination of documents and that all subsequent claims also lack inventive step.
Head note: Paul van Dongen