EPLAW Patent Blog

NL - Taste of Nature v. Cresco

Taste of Nature Holding B.V. v. Cresco Produktie Maatschappij B.V. et al, District Court The Hague, The Netherlands, 31 January 2012, Case No. 11-1414, with thanks to Thomas Berendsen and Maarten Rijks, Banning, for sending in a translation of the judgment

Both Taste of Nature and Cresco operate in the field of the production and sale of sprouts and seedlings which are edible young vegetable plants. Taste of Nature has developed a seedling of a radish being characterized by a high level of anthocyanin (antioxidant), protected by its European patent EP 1.290.938 (“EP ‘938”), as validated in the Netherlands. The patent inter alia relates to methods for the production of the seedling.

Early December 2011, Taste of Nature initiated Summary Proceedings against Cresco, because of alleged infringement of its patent. The Judge rejected Taste of Nature’s claims because it considered EP ‘938 invalid in view the exclusion of patentability under article 53(b) EPC. In the reasons the Summary Proceedings Judge stated that “it is plausible that under Article 53, opening lines and (b), of the EPC, not only an essentially biological method is unpatentable, such as the “classical breeding” in this case, but also a product directly obtained by using that method, because a method claim also protects the product directly obtained using that method (see Article 64(2) of the EPC).”

In order to further underpin its opinion, the Judge argues that “[i]f it were to be ruled that a product-by-process claim is admissible for the directly obtained product of an unpatentable essentially biological method, that would render the exclusion in Article 53, opening lines and (b), of the EPC as interpreted by the EBA in G1/08 pointless, because in that case the same situation would be involved as if the EBA had considered the process claims admissible, which is not the case.”

Read the decision (in English) here.
Read the decision (in Dutch) here.

Head note: András Kupecz

NL - Lundbeck v. Tiefenbacher / Escitalopram Appeal

Joined cases of H. Lundbeck A/S v. Alfred E. Tiefenbacher GmbH and H. Lundbeck A/S v. Centrafarm Services B.V. and H. Lundbeck A/S v. Ratiopharm GmbH, Court of Appeal The Hague, The Netherlands, 24 January 2012, Case Nos 312468 / HA ZA 08-1827, 314574/HA ZA 08-2142 and 314783/HA ZA 08-2172, with thanks to Marleen van den Horst en Jaap Bremer, BarentsKrans, for sending in the judgment and a summary in English

The Court of Appeal in the Hague has decided that Lundbeck’s patent for escitalopram, which patent had been invalidated in its entirety by the District Court in first instance, is partially invalid. The product claims for the active substance escitalopram were nullified for lack of inventive step, whilst the method claim describing a specific procedure for the synthesis of escitalopram and the claim relating to an intermediate product were considered valid. The SPC-specific nullity arguments were dismissed.

Read the entire summary in English here.

Read the judgment (in Dutch) here.  

NL - Lübbers v. Relco and annular gap injectors

Lübbers Anlagen und Umwelttechnick GmbH v. Relco Wet & Dry B.V., accelerated patent proceedings before the District Court of The Hague, the Netherlands, 25 January 2012, Case No. 387236 / HA ZA 11-451 
 


On 25 January 2012, the District Court of The Hague ruled in the case brought by Lübbers against Relco. Lübbers acted as the exclusive licensee for EP 1 105 202 (relating to an annular ring injector aimed at cleaning air purification chambers), which patent is owned by Dutch patent holder and licensor Korporam B.V. Lübbers sought an injunction against Relco for patent infringement, but saw the invoked patent partially invalidated instead. Relco attacked the patent on grounds of lack of clarity / insufficiency, lack of novelty and lack of inventive step.

The Court ruled that although lack of clarity arguments under Article 84 EPC are not as such admissible in national proceedings, but that such arguments can indeed lead to invalidation on grounds of insufficiency (Article 83 EPC). Claim 4 is invalidated for that reason.

NL - Wagner v. Prevent

Wagner Group GmbH v. FX Prevent B.V., District Court The Hague, The Netherlands, 23 November 2011, Case No. 11-458
 
In its judgment of 23 November 2011, the District Court of The Hague ruled that FX Prevent infringed upon claim 1 and 10 of Wagner’s European patent EP 1 062 005. This patent relates to a fire extinguishing method by way of lowering the oxygen amount in the air of the closed room in two steps. FX Prevent argued that Wagner’s patent  is not novel and did not involve an inventive step, however failed to prove it. According to the court FX Prevent did not substantiate these argument in any way. No dated documents were submitted. Moroever, the argument that the patent did not involve any inventive step was raised for the first time during the oral hearing, which is too late. FX Prevent did not deny the infringement. The court therefore ruled that FX Prevent has to cease and desist from infringing the patent.

Read the judgment (in Dutch) here.

Headnote: Wim Maas

NL - Lankhorst Pure Composites v. Samsonite Europe

Lankhorst Pure Composites B.V. v. Samsonite Europe N.V., Samsonite IP Holdings SARL & Samsonite Corporation, District Court The Hague, the Nethrlands, 16 March 2011, Case No. 375714 / HA ZA 10-3322

Jurisdictional dispute in a case where Lankhorst claims that it is entitled to several patent applications filed by Samsonite IP Holdings and Samsonite Corporation. Lankhorst and Samsonite Europe had cooperated in the development of suitcase parts. Lankhorst stated that Samsonite Europe had violated a confidentiality clause in the agreement between the parties by having Samsonite IP Holdings and Samsonite Corporation file patent applications for subject matter that would have been derived from Lankhorst.

The Court of The Hague declared itself incompetent with respect to Samsonite IP Holdings. Samsonite IP Holdings was based in Luxembourg and according to Article 2 of the Protocol on Recognition the Court of Luxembourg had jurisdiction. Samsonite IP Holdings was moreover held not to be bound to the choice of forum in the agreement between Lankhorst and Samsonite Europe. According to Lankhorst, this should have been the case as Samsonite IP Holdings would have acted as front man for filing patent applications while it would have known that the subject matter thereof had been derived from Lankhorst. Although this, according to the Court, could constitute an unlawful act, it could not be a ground to extend the scope of the agreement to also include Samsonite IP Holdings. Article 6(1) EEX was held not to apply as none of the defendants were based in The Netherlands. Moreover, the Protocol on Recognition was held to have precedence over the EEX-Regulation, which was also the reason why Article 5(3) EEX missed applicability, according to the Court.

Read the judgment (in Dutch) here.

Head note: Geert Theuws

NL - Canusa v. Frans Nooren and Stopaq

Canusa v. Frans Nooren and Stopaq, President of the District Court The Hague 2 March 2011, case / docket number: 382458 / KG ZA 10-1556

One of the defendant Frans Nooren is the holder of two European patents for inter alia i) the use of a fluid, non-setting preparation for protecting underground objects against corrosion, ii) a method for sealing manholes covers, and iii) a composition for the protection of a shaped article against corrosion. The other defendant Stopaq is for The Netherland the exclusive license under these patents. Between the claimant Canusa and the defendants infringement proceedings are pending in Germany with respect to the German parts of the patents. Canusa intends to enter the Dutch market with two new products of which they believe that they are not infringing. Canusa demands from the defendants that they render an opinion as to whether or not the new products of Canusa would be held to infringe upon their patents. After an extensive correspondence between the lawyers of both parties, defendant maintained its position that on the basis of the limited information provided a proper assessment of non-infringement cannot be made.

In summary proceedings Canusa demands that defendants tolerate the manufacturing and exploitation of the two new Canusa products, and furthermore files for an injunction for defendants to enforce the patents with respect to these products. These claims are dismissed by the court. According to the court Canusa’s first claim comes down to a request for a negative declaratory judgment and is in fact a anti-suit injunction. Such a judgment cannot be rendered in summary proceedings. Morover, defendants have not in any way enforced, warned or informed Canusa or its customers in The Netherland with respect to their new products. The mere fact that defendants were not willing to provide Canusa with their assessment of non-infringement, to which they were not obliged by law, is under the circumstances of this specific matter not unlawful against Canusa.

Read the judgment (in Dutch) here.

Head note: Wim Maas

NL - Sony / LG - PS3 Seizures lifted

LG Electronics Inc v. Sony supply Chain Solutions (Europe) B.V., Provisional Relief Judge, District Court The Hague, 10 March 2011, with thanks to Frank Eijsvogels, Bart van den Broek, David Owen and Geert Theuws Hoyng Monégier

* Now including the entire judgment (in Dutch) *

The judge ordered on 10 March that LG's much discussed attachments (attachments for the purpose of surrender as well as border seizure(s) based on Regulation 1383/2003) of Sony PS3 devices be lifted immediately.

Also, the judge ordered that LG -should it wish to obtain a new leave to attach based on essential Blu-Ray patents- must serve this request on Sony before filing it at the court and state in the request that it wishes that parties be heard and that Sony be called to that hearing.

Read the decision (in Dutch) here.
Read the entire judgment (in Dutch) here.

Read an office translation of the decision (in English) here.

Read our previous post here.

NL - SES v. [X]

District Court The Hague, 23 February 2011, case no. / docket no. 266433 / HA ZA 06-1857, SES v. [X]

[X] is the owner of a patent for a method for affixing and removing a braid (hairextensions) to and from natural hair. SES claims that the patent is invalid for lack of inventive step. After an elaborate discussion of the patent and the prior art, the court starts to construe claim 1 of the patent. It is established that claim 1 relates to the two sided application of glue (on the hair and the braid) as SES alleged. The court then does not follow SES' iddentification of the closest prior art (because that document would relate to wefts and not to braids). The court identifies the objective technical problem and then, starting from the closest prior art as identified by the court, it finds that the patent is obvious by combining the closest prior art with the common general knowledge (only a different type of glue is to be used, which type of glue is known the the skilled person). The dependent claims are also found to be invalid.

Read the judgment (in Dutch) here.

Head note: Paul van Dongen

NL - John Bean v. Afoheat

John Bean Technologies Corporation v. Immo AFO, X. District Court the Hague, the Netherlands, 23 February 2011, Case no. 363101 / HA ZA 10-1264

John Bean alleged the invalidity of Afoheat's European Patent re 'Process and apparatus for the cooking of meat foods'. Prior art document Sunao describes an aparatus for the heating of pizza's, gratins or -more general- food. This generic disclosure does not take away the novelty of any specific example falling within the terms of that disclosure (Guidelines for Examination Part C, IV paragraph 9.5). Moreover, Sunao describes a shielding wall and not a tunnel. Other validity attacks fail as well. 
 
Read the judgment (in Dutch) here.

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