EPLAW Patent Blog

NL - Easy Sanitary Solutions v. Blücher

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.

Read the judgment (in Dutch) here.

NL - Sandoz v. AstraZeneca / Seroquel

Joined cases Sandoz B.V. and Hexal AG v. AstraZeneca AB and Accord Healthcare B.V. and Accord Healthcare Ltd v. AstraZeneca AB, District Court The Hague, The Netherlands, 7 March 2012, Case numbers 397921 / HA ZA 11-1977 and 397925 / HA ZA 11-1978, with thanks to Willem Hoyng and Jeroen den Hartog, Hoyng Monegier, for sending in the case and a translation in English

Sandoz et al sought to invalidate AstraZeneca’s patent for a sustained release formulation of quetiapine (Seroquel). According to Sandoz et al., AstraZeneca’s patent lacked inventive step as on the priority date there would have been a strong motivation for the skilled man to  make sustained release formulation, with a reasonable expectation of success. The District Court of The Hague applied the following test:

“The District Court will take as its point of departure that in the assessment of the inventive step of the patent, also if the problem-solution approach is applied, the question must be answered as to whether the average skilled person - assuming all the knowledge at his disposal on the filing date - was motivated to develop a sustained-release formulation of quetiapine and whether he would have a reasonable expectation of success, i.e. that this would solve the objective problem. In this respect, motivation on the one hand and a reasonable expectation of success are communicating vessels, in the sense that if he is strongly motivated, a less-high expectation of success will be sufficient for the skilled person, whereas he will need a high expectation of success if he is not very motivated. In other words, what is a ‘reasonable’ expectation, depends on the level of motivation.”

In applying this test, the Court held that the motivation to make a sustained release formulation of quetiapine was very limited on the priority date. As the skilled man moreover did not have a high expectation that he could make a sufficiently efficacious sustained release formulation of quetiapine with success, the Court concluded that such formulation was not obvious on the priority date and denied the requested invalidation of the patent.

Read the decision (in Dutch) here.

Read the decision (in English) here.   

Head note: Geert Theuws

NL - Sandoz and Hexal v. Glaxo

Sandoz B.V. and Hexal AG v. Glaxo Group Limited, The Hague District Court, The Hague, The Netherlands, 26 January 2011, Case no./docket no. 343983 / HA ZA 09-2540.
 
The court invalidates Glaxo's patent for a combination of salmeterol and fluticason because of lack of inventive step, just like the British, Irish and German judges have invalidated the respective national counterparts. The court gives an elaborate motivation on the application of the problem-solution approach and the could/would test. According to the court the skilled person would look for a better corticosteroid component and then find fluticason. Arguments from the side of Glaxo relating to - among other things - synergistic effects and 'negative pointers' towards fluticason and the combination are all dismissed. Throughout the judgment the court regularly refers to the case law of the Technical Boards of Appeal of the EPO to support its conclusions.

Read the decision (in Dutch) here.

Read the English translation of the decision here (with thanks to Brinkhof Advocaten).

Headnote: Paul van Dongen