Phil & Ted’s Most Excellent Buggy Company Limited v. (1) TFK Trends for Kids GmbH (2) Oliver Beger (3) Udo Beger, Patents County Court, London, UK, 8 May 2013, [2013] EWPCC 21
The Patents County Court held that TFK’s patent relating to a baby buggy was invalid.
Phil & Ted’s commenced proceedings for unjustified threats and revocation of TFK’s patent, EP (UK) 1 795 424. TFK responded with a counterclaim for infringement in respect of Phil & Ted’s Promenade buggy which has a seat which transforms into a carry cot and vice versa. Phil & Ted’s denied infringement and alleged claim 1 (the only claim in issue) was invalid for obviousness in light of a Chinese Utility Model Patent (Goodbaby), a UK patent application (Bigo) and common general knowledge based on a product called the Bugaboo Frog.
HHJ Birss QC held that the Promenade buggy fell within the scope of claim 1 of the patent but noted that the points on non-infringement were squeezes on validity.
HHJ Birss QC held that the patent was invalid for obviousness in light of Goodbaby but that the attacks based on Bigo and common general knowledge failed.
Easy Sanitary Solutions B.V. v. Blücher Metal A/S, District Court The Hage, The Netherlands, 24 April 2013, Case No. HA ZA 12-895, with thanks to Frank Eijsvogels and Christopher Pierce, Hoyng Monegier, for providing the decision
Easy Sanitary Solutions alleged that Blücher infringed its patent on a triangular drain. Blücher argued that the patent was invalid due to lack of novelty and inventive step and that its triangular drain products that are offered for sale in the Netherlands do not infringe the patent.
Blücher's suggestion to not apply the problem-solution approach to inventive step, but a “common-sense approach” was not followed by the Court.The Court found that Blücher’s inventive step arguments were tainted by hind-sight. The Court found that Blücher’s triangular drain products which are offered in the Netherlands infringe the patent, and ordered Blücher to pay the costs of the proceedings.
Lizzanno Partitions (UK) Limited -v- Interiors Manufacturing Limited, Patents County Court, HH Judge Birss QC, London, UK, 12 February 2013, Case No. [2013] EWPCC 12
This judgment relates to an action for a declaration of non-infringement and revocation of the defendant’s United Kingdom patent GB 2 432 617 (“the Patent”) and the corresponding counterclaim for infringement. The alleged infringement concerned the claimant’s gasket for sealing between glass partition walls. The Patent was found valid and infringed.
In the judgment, the claimant is referred to as “Lizzanno” and the defendant as “Komfort” (Komfort Workspace Plc having been the original proprietor of the Patent).
Infringement
In essence, Komfort’s invention is based on a new gasket which is made of a hollow tube of non-rigid material and has a particular shape when it is not in use – namely it has a substantially rectangular cross-section, with substantially planar long edges and curved shorter edges. In contrast, Lizzanno contended that its “fan shaped” gasket did not infringe because: (i) its gasket has concave curves (rather than convex curves as shown in the figures of the Patent), (ii) the sides of the gasket are purposefully not parallel, (iii) the gasket is made using two different grades of PVC, and (iv) one of such materials is rigid.
Based on the Court’s construction of various features of the claims, in particular, the Judge’s finding that:
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.
Diamed c.s. v. Sanquin c.s. and Menarini c.s., Court of Appeal The Hague, the Netherlands, 26 March 2013, Case No. 105.003.971/01, with thanks to Willem Hoyng and Frank Eijsvogels, Hoyng Monegier, for sending in the judgment
Diamed c.s. owns two European Patents, EP 0194212 (“EP 212”) and EP 0305337 (“EP 337”). These patents relate to a method for detecting agglutinated erythrocytes.Sanquin c.s. manufactures and offers, being assisted by Menarini c.s., a diagnostic kit under the name Cellbind. Diamed c.s. claims that Sanquin c.s. and Menarini c.s. infringe the abovementioned patents. By way of counterclaim Sanquin c.s. demanded that the patents be nullified. The District Court denied the claims of Diamed c.s. after which Diamed c.s. appealed against this judgment.
In its interlocutory judgment the Court of Appeal ruled that, assuming that Cellbind works by the principle of affinity as stated by Sanquin c.s. instead of the method as claimed in the patents of Diamed c.s., Sanquin c.s. is not infringing the patents of Diamed c.s. However, the Court of Appeal found it necessary to appoint an independent expert to research one and another.
After the experts report the Court of Appeal follows his findings and judges that Cellbind does work according the principle of affinity and thus does not work according to the method of filtering as claimed in the patents of Diamed c.s. Therefore the Court of Appeal concludes that Sanquin c.s. is not infringing the patents, not literally nor by means of equivalence.
Legro Gartneri A/S v. Svegro AB, Svegro AB v. Legro Gartneri A/S, District Court of Stockholm, 26 April 2012, Docket No. T 106-10 and T 5193-10 (joint cases)
Svegro requested that the District Court should declare Lergo’s European patent EP1197137 (A method of growing two or more plants for the development of a composite or combined plant) invalid as far as concerns Sweden. The request was denied by Legro, including (as part of its defence) a request for a limitation of the patent should it otherwise be considered invalid. The parties also agreed that the District Court should assess whether Svegro infringed the patent-in-suit provided that it was valid.
In the invalidity case, focus for the assessment of novelty was whether the invention of the patent-in-suit had been disclosed by public use before the filing date of the patent application. In this respect, reference was made to case law from the EPO. It was first concluded that use of the invention in greenhouses or in private did not constitute “public use” unless the public had access to such facilities without a confidentiality undertaking. Furthermore, it was noted that there could be “public use” if the patented method was possible to understand following examination of the products produced by the use of such method but that the person skilled in the art would not have understood with certainty which method that had been used following such examination in this case. Hence, the invention was novel. However, the District Court concluded that the invention lacked inventive step when considering certain prior art invoked by Svegro. In support of its argument that the invention constituted an inventive step, Legro had invoked inter alia a licence agreement pursuant to which the patent-in-suit had been licensed to a third party. While commercial success can be a factor indicating an inventive step, the District Court was of the opinion that the existence of the licence agreement did not alter its assessment.
In the District Court's judgment, the patent-in-suit was declared invalid but that Svegro would infringe the patent if it was valid (hypothetical case). However, in its assessment of infringement in the hypothetical case, the District Court also considered whether there was any prior user rights defence for Svegro. The District Court concluded that one of Svegro’s suppliers had used the patented method in accordance with such prior user rights defence and, consequently, that Svegro’s handling of products manufactured during such time by its supplier did not constitute patent infringement. Legro was ordered to reimburse Svegro’s legal costs.
The infringement case was stayed pending any appeal of and final judgement in the invalidity case. The parties have now settled the case.
Regeneron Pharmaceuticals Inc. and Bayer Pharma AG v. Genentech Inc., Court of Appeal, London, UK, 21 February 2013, [2013] EWCA Civ 93
The Court of Appeal upheld the decision of the Patents Court that Genentech’s patent was valid and infringed.
Regeneron and Bayer applied to revoke Genentech’s patent, EP (UK) 1 238 986, regarding the use of human vascular endothelial growth factor (hVEGF) antagonists for the treatment of non-cancerous (non-neoplastic) diseases which are characterised by excessive blood vessel growth (neovascularisation or angiogenesis). Regeneron and Bayer attacked the patent on the grounds of lack of novelty, obviousness and insufficiency.
Regeneron and Bayer also sought a declaration of non-infringement in respect of a product called VEGF-Trap which had been developed by Regeneron and licensed to Bayer. Bayer intended to sell VEGF-Trap in the UK for the treatment of neovascular age-related macular degeneration (ARMD), a leading cause of premature blindness. Genentech counterclaimed for infringement.
In the Patents Court, Mr Justice Floyd held the patent to be valid and infringed. Regeneron and Bayer appealed this decision.
On appeal, Regeneron and Bayer argued that the Judge had misconstrued the claims of the patent as not requiring any therapeutic effect on the disease or disorder in question and that he was inconsistent in applying his construction when considering validity. They also argued that the Judge had wrongly held that the claims encompassed any variant of a naturally receptor which retained the ability to bind VEGF and inhibit its activity. The Court of Appeal rejected the appellants’ arguments on construction. The specification clearly showed that Genentech intended variants to be included within the scope of the monopoly and VEGF-Trap fell within the scope of the patent.
Active Photonics AG v. (1) GB Solo Limited (2) Solo Thermal Imaging Limited, Patents County Court, London, UK, 27 February 2013, [2013] EWPCC 9
The Patents County Court held that the second defendant’s defence had been served out of time following a previous unless order and granted the patentee’s claim for infringement against the second defendant.
Active Photonics commenced infringement proceedings against GB Solo in respect of its patent, EP 1 107 041, entitled “Mask to display an image taken with a camera”. Active Photonics later applied to join Solo Thermal Imaging into the proceedings. Following a series of delays, HHJ Birss QC granted an unless order that required Solo Thermal Imaging to serve its Defence by 10 December 2012 in default of which it would be debarred from defending the claim and judgment would be entered for Active Photonics.
Solo Thermal Imaging served its Defence on 13 December. No application for relief against sanction was made by Solo Thermal Imaging and Active Photonics applied for judgment against Solo Thermal Imaging on the ground that it had failed to comply with the unless order.
HHJ Birss QC granted Active Photonics’ request noting that there had been no attempt at a proper excuse for failing to comply with what an entirely fair case management order. HHJ Birss QC ordered an injunction and delivery up but refused to stay the case against GB Solo Limited. HHJ Birss stayed the request for damages and decided to conduct the summary assessment of costs in writing in view of the lack of detail in Active Photonics’ Schedule of Costs.
Bayer Pharma AG v. Sandoz B.V., District Court The Hague (preliminary relief judge), the Netherlands, 24 January 2013, case no. C/09/432919 / KG ZA 12-1391
Bayer is the owner of two process patents concerning the synthesis of the compound drospirenon.Sandoz has introduced a generic product which is manufactured by the Italian company Industriale Chimica (IC). IC also holds patents for the production of drospirenon.
In case of both patents invoked by Bayer, there is no literal infringement as IC applies another reagent/reactant in the process than the one specified in the claims of the concerned patent. The question is therefore in both cases whether the reagent/reactant used by IC can be regarded as equivalent measure. The judge comes to the conclusion that this is not the case. In its reasoning the court applies the function-way-result test, and concludes that it is insufficiently substantiated that the alternative compounds work in the same way. Furthermore the judge attaches value to the fact that the use of the alternative compounds is itself the subject of patent protection and has certain advantages compared to the use of the compounds mentioned in the processes patented by Bayer.
EveryMed AB v. Roche Diagnostics GmbH, Svea Court of Appeal, Sweden, 27 June 2012, Docket No. T 5531-11
On appeal of a District Court of Stockholm judgment in joint infringement and invalidity proceedings, the Svea Court of Appeal confirmed the District Court's judgement by dismissing Everymed’s claim that Roche’s European patent EP0622119 (System for dispensing test elements) was invalid as far as concerns Sweden. However, unlike the District Court, the Court of Appeal concluded that the patent-in-suit was not infringed by Everymed (through its system “EveryX3”) and therefore reversed the District Court’s judgment on damages, injunction and reimbursement of legal costs.
The key differences in the assessment by the Court of Appeal, compared to the assessment by the District Court, was that the Court of Appeal made a stricter interpretation of two terms in the patent claims and whether they should be interpreted as a requirement that a test element completely leaves the chamber of the device or whether it also includes a system in which the test element partially stays in the chamber. For its conclusion that the scope of patent protection was limited to a system in which the test element completely leaves the chamber, the Court of Appeal found support in the linguistic meaning of the relevant terms and also how the technical problem was formulated in the description.
Interesting to note from the Court of Appeal judgement is, to begin with, that it was established that a patent cannot be declared partially invalid upon request from the counterpart to the patentee only, i.e. when the patentee has not requested in its defence that the patent be limited at the risk of otherwise being declared invalid in its entirety (a possibility that was introduced in the Swedish Patents Act in 2007 for the implementation of the EPC 2000). The background was that Everymed requested that one (independent patent claim) of the (in total 13) patent claims of Roche’s patent be declared invalid.
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