Bébécar-Utilidades Para Crianca LDA v. Maxi Miliaan B.V., The Hague Court of Appeal, The Netherlands, 30 March 2010, Case No. 105.002.137/01, with thanks to Willem Hoorneman, CMS Derks Star Busman
Article 138 EPC now gives the patentee the right to limit the patent by amending the claims. The patent as thus limited shall form the basis for the proceedings. In an earlier decision, the Dutch Supreme Court decided that the Dutch limitations on the possibility to amend European patents (the so-called Spiro/Flamco doctrine) could no longer be reconciled with the new EPC (HR Boston/Medinol).
In this decision, the Dutch Court of Appeal states that the same approach should be used for Dutch patents. By analogy with the transitional provisions of the Act revising the EPC, the new approach shall also be applied to patents which were already granted on 13 December 2007.
Read the decision (in Dutch) here.