EPLAW Patent Blog

NL - Safeway v. Kedge Holding

Safeway GmbH v. Kedge Holding B.V., declaration of non-infringement, President of the District Court of The Hague, The Netherlands, 18 October 2010, Case No. 375586 / 10-1120
 
The Safeway vs. Kedge safety devices story continues (see the previous decisions here and here). After an earlier finding of infringement, Safeway has adapted the devices and now seeks a declaration of non-(indirect)infringement in preliminay proceedings.

Safeway has adapted their devices by adding a prior art-type fastening means, and providing user instructions that say how to use it in the non-infringing way. However, users can still use the device in an infringing way by simply not using the added fastening option.

The question is one of indirect infringement: does Safeway supply means regarding an essential element of the patented invention and do they know that, or is it evident considering the circumstances that, those means are suitable and intended for application of the patented invention? Kedge brings forward several arguments saying that although users can fasten the safety means in a non-infringing way, users wil not do so because they can still fasten it in the more advantageous, infringing way. The court finds that it is uncertain whether userswill indeed follow the instructions of Safeway. Given the nature of preliminary proceedings, Safeway has to bear the consequences of this uncertainty and the declaration is denied.
 
Read the decision (in Dutch) here.

Head note: Paul van Dongen

NL - Kedge v. Aabo & Safeway

Kedge v. Aabo & Safeway, President of the District Court of the Hague, The Netherlands, 5 August 2010, Case No. KG ZA 10-721

In its decision d.d. 10 March 2010 (which can be read here), the Court of the Hague ruled that the "fall protections" manufactured by Safeway did not infringe upon Kedge's European patent EP 1 699 991, for a safety device for a fall restraint. Kedge subsequently started preliminary injunction proceedings against Aabo - a distributor of the fall protections manufactured by Safeway - on the basis of a divisional of the '991 patent, i.e. European patent EP 1 803 871 for an object provided with a safety device for a personal fall protection. Safeway joined Aabo in the proceedings.
 
In its decision d.d. 5 August 2010, the President of the District Court of the Hague ruled that the litigious fall protections did infringe upon Kedge's '871 divisional. According to the President, a crucial limitation of the claims of the '991 patent - based on which in the earlier decision it was held that there was no infringement - was lacking in its '871 divisional. Moreover, the validity attacks against the '871 divisional failed. The President, amongst others, held that the '871 divisional distinguished itself differently from the prior art than the '991 patent. Although the distinguishing feature of the '871 patent was also present in the claims of the '991 patent, it was included there as an intended use, which - following EPO Guidelines - according to the President was not sufficient to provide novelty over the prior art document as long as the skilled man would understand that the product disclosed in the prior art document would be suitable to be used in the same way.
 
An injunction followed.

Read the decision (in Dutch) here.

Head note: Geert Theuws

NL - Safeway GmbH v. Kedge Holding B.V.

Safeway GmbH v. Kedge Holding B.V., declaration of non-infringement, The Hague District Court, The Netherlands, 10 March 2010, Case No. 337089 / 09-1591

The District Court of The Hague -after consulting the prosecution history to resolve unclarity regarding the meaning of the word 'laterally' in claim 1- rules that Safeway does not infringe (by equivalence) Kedge's European Patent 1 699 991 re a safety device for a personal fall protection.

Read the judgment (in Dutch) here.