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.
Read the judgment (in Swedish) here.
Head note: Erik Ficks