The Ghent commercial court finds that Ulti Med Products has infringed European patent 291 194 B2 for a specific analytical test device and an analytical method in which this test device is used. Ulti Med did not deny having commercialized the contested product ('D Dimer Test', but said that Iverness’ rights were exhausted because the products had allegedly been placed on the market by Iverness or with its consent.
This defence was rejected by the court because there was not enough evidence of the alleged exhaustion. The court also rejected Ulti Med’s argument that no damages were due for some of the infringing sales as a result of the five year time bar for infringement claims under Belgian patent law. According to the court, the fact that Iverness carried out a 'saisie' at Ulti Med, interrupted the statutory prescription term. An expert was appointed for the final calculation of the damages.
Head note: Philippe de Jong