EPLAW Patent Blog

UK - Mölnlycke v. BSN Medical

Mölnlycke Health Care AB (MAB), Mölnlycke Health care Limited (MUK) v. BSN Medical Limited and BSN Medical GmbH (Cutimed Siltec wound dressings), High Court of Justice, Chancery Division, Patents Court, London, UK, 17 December 2009, Case No. HC09C037755.

BSN contends that infringement proceedings brought by Mölnlycke be stayed (based on Article 27 of Regulation No. 44/2001) until jurisdiction of the Stockholm District Court in co-pending declaratory proceedings related to the patent is established. MAB applies for an interim injunction until judgment or further order.

Justice Flyd states that the purpose of Article 27 (to prevent parallel proceedings in different member states) requires a flexible approach to the meaning of 'same parties'. It would be wrong to treat MUK as the same party when the effect may be to deprive it of the benefit of its exclusive license. Justice Floyd refuses the stay on the basis that the parties are not identical. It is therefore not necessary to consider whether the causes of action are identical. The injunction applied for was refused as MAB and MUK have not behaved like parties who need urgent protection against BSN's competition. 

Read the judgment (in English) here.

DE - Italian torpedo / infringement

(No name available), infringement proceedings (Italian torpedo), Court of Appeals Düsseldorf, 20 July 2009, Docket No. 2 W 35/09

No stay of German infringement proceedings in view of an already pending declaratory judgment action in Italy (“Italian Torpedo”): A general request before an Italian Court that a certain European Patent as well as any future protective rights deriving there from are not infringed, cannot justify a stay of German infringement proceedings in view of Art. 27 and 28 Regulation (EC) No. 44/2001, if the patents in suit before the German Court were granted after the filing of the request before the Italian Court and were not specifically made the subject matter of the Italian procedure before the German infringement action was filed.

Read the judgment here.

Read the extended summary (provided by Bardehle & Pagenberg) here.

DE - Italian Torpedo

Italienischer Torpedo/Italian Torpedo - patent infringement, Düsseldorf Regional Court, Germany, 17 March 2009, Case No.: 4b O 218/08 

The only factual requirements pursuant to Article 27 Council Regulation (EC) no. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters are the identity of the parties and the identity of the asserted claims. There are no further requirements such as the competence of the court first appealed to. Under this the last court appealed to may not examine the competence of the first court.

The various national parts of a European patent are not to be seen as one patent. After it is granted, the European "bundle" patent is in fact broken down into its individual national parts.

Read the judgment in: GRUR Int. 2009, pp. 402 - 406