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