EPLAW Patent Blog

NL - Kedge v. Aabo & Safeway

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

FR - Institut Pasteur v. Siemens

Institut Pasteur v. Siemens Healthcare Diagnostics, Court of First Instance, Paris, France, 28 may 2010, Docket No.: 08/08679, with thanks to Pierre Véron, Véron & Associés for sending in the case and the translation
 
In this case dealing with detection kits for the quantitative diagnosis of HIV, the First Instance Court of Paris recently decided on (i) file wrapper estoppel and claim construction in light of Article 69 EPC in France as well as on (ii) the consequences of claim construction on patent infringement under the Doctrine of Equivalents. 
 
'File wrapper estoppel' and claim construction in light of Article 69 EPC in France - the French Court expressly rejects the application of the American theory of 'file wrapper estoppel' in France but the Court also clearly states that it keeps the possibility: "of referring to the wording of the claims as initially filed and of appraising the scope thereof, in particular in light of the amendments made during the grant or opposition proceedings before the European Patent Office"
 
The consequences of claim construction on patent infringement under the Doctrine of Equivalents - in deciding whether or not a general mean with a new function is claimed, the Court may consider "the limitations made by the patentee to the claims’ wording during the examination and opposition proceedings before the European Patent Office".

Read a complete summary in English here.

Read the decision (in French) here.
Read the decision (in English) here.

Head note and summary in English: Stanislas Roux-Vaillard

DK - Power Stow v. RASN and others

Power Stow A/S v. RASN A/S, John Bean Technology Corporation and SAS Denmark-Norway-Sweden, Maritime and Commercial Court, Denmark, 21 May 2010, Case No. T-5-08

The court ruled that the claims of the patent-in-suit must be read in light of the prosecution file of the application that led to the patent-in-suit. The patent-in-suit was granted after comprehensive communications with the Danish PTO which in the opinion of the court must entail that the claim language is precise and clearly distinguished from the prior art. Against the background, the court found that the claims must be construed narrowly and that as a result the protective scope conferred on the patentee could only comprise that which was not already known in the prior art.

A summary of the case in English can be found below.

UK - Occlutech GmbH v. AGA Medical Corporation & Ors

Occlutech GmbH v. AGA Medical Corporation & Ors, Court of Appeal (Civil Division), Royal Courts of Justice, London, UK, 22 June 2010

The Court of Appeal has dismissed an appeal against the decision of the Patents Court finding non-infringement of EP(UK) 808138 (the "Patent").

The Appeal concerned whether there was an infringement of the Patent for a medical device used for occlusion of blood vessels and other body lumens. The Patent claims a device comprising a metal fabric formed of braided metal strands characterized by clamps adapted to clamp the strands at the opposed ends of the device. The infringement turned on what is meant by "clamps" and clamping "the strands at the opposed ends of the device". The allegedly infringing devices are made using a mesh sock made out of metal wire in which there are cut strands only at one end. These are secured by welding. It was argued by Occlutech that that their devices were not clamped in the sense described in the Patent, because the ends of the metal strands in their devices are secured together by welding; and, the metal fibres all terminate at one end of the device rather than at both ends.

Held:

The Court of Appeal dismissed the appeal, whilst noting that The Hague District Court have ruled in favour of Occlutech and the Düsseldorf Higher Regional Court against. There was no infringement of the Patent. Article 69 of the EPC 2000 requires the extent of protection conferred by a European patent to be determined by the claims.

DE - Gelenkanordnung (hinge arrangement)

Gelenkanordnung (hinge arrangement), infringement proceedings, Federal Supreme Court, Germany, 4 February 2010, Docket No. Xa. ZR 36/08

The determination of the technical problem to be solved by the patent is part of the interpretation of the patent claim. The technical problem has to be developed from what the invention as claimed actually achieves. Statements given in the description of the patent with regard to the “object” of the invention may contain a hint for the correct understanding of the patent claim. However, as is the case with any further content of the patent specification, the patent claim itself precedes such statements.

Read a summary in English, provided by Bardehle & Pagenberg, here.

Read the decision (in German) here.

Head note: Tilman Müller-Stoy