EPLAW Patent Blog

SE - Occlutech v. AGA

Occlutech GmbH v. AGA Medical Corporation, AGA Medical Corporation v. Occlutech International AB and Tor Peters (private person), District Court of Stockholm, 4 March 2011, Docket No. T 18865-07 and T 4110-08 (joint cases)

Occlutech GmbH requested that the District Court should declare that it is free to sell its product in Sweden, irrespective of AGA Medical Corporation's EP patent for Sweden. The request was denied by AGA and, in response, AGA claimed that Occlutech's Swedish subsidiary (Occlutech International AB) and its chairman (Tor Peter) was guilty of infringement of AGA's patent (requesting an injunction and that examples of the product should be destroyed). The patent infringement case was denied.

In the District Court's assessment, AGA's alleged interpretation of the patent was more extensive than for which support could be found in the patent claims, in the patent description or from the patent application process. Due to the differences of the products, the District Court concluded that Occlutech's protect was outside the patent protection and also, consequently, that it did not infringe the patent. For the assessment of the alleged patent infringement, the Court also considered the doctrine of equivalents. However, neither on the basis of such assessment was the patent considered infringed.

Read the judgment (in Swedish) here.

Head note: Erik Ficks

NL - AGA Medical Corporation vs. Occlutech

AGA Medical Corporation vs. Occlutech GmbH, Court of Appeal of The Hague, The Netherlands, 19 October 2010, Case no.: 200 020.925/01, with thanks to Marjanka Vermunt, Brinkhof, for sending in the decision

AGA is the holder of a European patent relating to a dumbbell shaped collapsible medical devices for delivery trough a channel of the body. The last element of claim 1 requires that clamps are adapted to clamp the strands at the opposed ends of the device. Occlutech produces dumbbell shaped medical devices for occluding septum defects and AGA seeks an injuction for these devices.

Occlutech argued, as was found by the court in first instance, that in the light of the description of the patent the claims are limited to devices that are to be placed in a channel. They conclude that since their septum occluders are not placed in a channel that they do not infringe the patent. However, the description indicates that the medical devices may also have a broader use than placement in a channel. The Court of Appeal finds, under reference to the EBA decision G 2/88, that the claims of the patent are not limited to a certain use of the medical device on the basis of the desciption of the patent.

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.