EveryMed AB v. Roche Diagnostics GmbH, Svea Court of Appeal, Sweden, 27 June 2012, Docket No. T 5531-11
On appeal of a District Court of Stockholm judgment in joint infringement and invalidity proceedings, the Svea Court of Appeal confirmed the District Court's judgement by dismissing Everymed’s claim that Roche’s European patent EP0622119 (System for dispensing test elements) was invalid as far as concerns Sweden. However, unlike the District Court, the Court of Appeal concluded that the patent-in-suit was not infringed by Everymed (through its system “EveryX3”) and therefore reversed the District Court’s judgment on damages, injunction and reimbursement of legal costs.
The key differences in the assessment by the Court of Appeal, compared to the assessment by the District Court, was that the Court of Appeal made a stricter interpretation of two terms in the patent claims and whether they should be interpreted as a requirement that a test element completely leaves the chamber of the device or whether it also includes a system in which the test element partially stays in the chamber. For its conclusion that the scope of patent protection was limited to a system in which the test element completely leaves the chamber, the Court of Appeal found support in the linguistic meaning of the relevant terms and also how the technical problem was formulated in the description.
Interesting to note from the Court of Appeal judgement is, to begin with, that it was established that a patent cannot be declared partially invalid upon request from the counterpart to the patentee only, i.e. when the patentee has not requested in its defence that the patent be limited at the risk of otherwise being declared invalid in its entirety (a possibility that was introduced in the Swedish Patents Act in 2007 for the implementation of the EPC 2000). The background was that Everymed requested that one (independent patent claim) of the (in total 13) patent claims of Roche’s patent be declared invalid.