EPLAW Patent Blog

NL - Enpros International v. Naesje/Smartseal

Enpros International B.V. v. Naesje/Smartseal A.S., proceedings on the merits, District Court The Hague, The Netherlands, June 5 2013, Case No. / Docket No. C09/408756 /HA ZA 11-2804, with thanks to Michiel Rijsdijk, Arnold + Siedsma and Michiel de Baat, Hoyng Monegier, for providing the judgment and a head note

Both Enpros and Smartseal (inventor Naesje) developed a drinking container having a spout with valve that opens upon sucking the spout.

Enpros requested nullification of the (Dutch part of) EP 1 404 587 registered in the name of Naesje based on added matter, novelty and inventive step objections. To overcome the objections, auxiliary requests were filed. One of the prior art documents concerned a non-public (Art 54(3) EPC) prior art. The patent proprietor sought to overcome objections based on this document by introducing a disclaimer in all auxiliary requests. The court allowed three rounds of exchanging validity arguments.

The court dismissed the disclaimer (and consequently all auxiliary requests) as not being clear, referring to G1/03, p.39  and G2/10 p.41/42. As a further argument for not allowing the disclaimer the court specifically pointed out that the patent disclosed an embodiment that would, as a result of the disclaimer, fall outside the scope of protection.

Further claim 1 as granted was extended beyond the original disclosure. Specifically the court saw that features filed in the independent claims as originally filed were deleted during examination. Reference was made to T331/87 (Essential test). The claims as filed included a feature related to pressure sealing, which would allow the opening of the valve by sucking. According to the court an average skilled person would understand that such pressure sealing is essential for the invention to work. Deletion of that feature is therefore not allowed. The court continued to study the 30 dependent claims to find any possible allowable features, but failed, resulting in nullification of the entire patent.

Because this case only concerned the nullity of the patent, the court dismissed the request for awarding procedural costs to Enpros. Reference was made to Bericap/Plastinova CJEU (C-180/11 of 15 November 2012)

Read the judgment (in Dutch) here.

NL - Taste of Nature / Cresco

Taste of Nature Holding B.V. v. Cresco Handels-B.V., proceedings on merits, District Court The Hague, The Netherlands, 8 May 2013, Case No. / Docket No. 416501 / KG ZA 12-452, With thanks to Paul Steinhauser, for sending in an English 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.

On 31 January 2012 the judge in summary injunction proceedings of the District Court of The Hague rejected Taste of Nature claim for infringement against Cresco. The judge considered the patent of Taste of Nature invalid in view the exclusion of patentability under article 53(b) EPC. In the reasons the 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).”

NL - FX Prevent v. Wagner Group

FX Prevent B.V. v. Wagner Group GmbH, District Court The Hague, The Netherlands, 8 May 2013, Case No. HA ZA 12-857, with thanks to Carreen Shannon and Charlotte de Boer, Deterink, for sending in the case and a head note in English

Wagner is the holder of a European patent relating to an inerting method for preventing and extinguishing fires in enclosed spaces. After a previous judgment of the District Court The Hague that FX Prevent had infringed Wagner’s patent, FX Prevent appealed that decision (which appeal is still pending) and separately initiated invalidity proceedings before the District Court, arguing that Wagner’s patent was invalid due to lack of novelty and inventive step.

As part of its statement of defence Wagner filed an auxiliary request. Also the amended claims were, however, found to be invalid by the court due to lack of inventive step. The court applied the problem-solution approach and held that if the solution to the posed problem did not already form part of his common general knowledge, the skilled man would have in any event learned that solution from a wide range of prior art documents. Wagner was ordered to pay the full costs of the proceedings.

Read the decision (in Dutch) here.

NL - Easy Sanitary Solutions v. Blücher

Easy Sanitary Solutions B.V. v. Blücher Metal A/S, District Court The Hage, The Netherlands, 24 April 2013, Case No. HA ZA 12-895, with thanks to Frank Eijsvogels and Christopher Pierce, Hoyng Monegier, for providing the decision

Easy Sanitary Solutions alleged that Blücher infringed its patent on a triangular drain. Blücher argued that the patent was invalid due to lack of novelty and inventive step and that its triangular drain products that are offered for sale in the Netherlands do not infringe the patent.

Blücher's suggestion to not apply the problem-solution approach to inventive step, but a “common-sense approach” was not followed by the Court.The Court found that Blücher’s inventive step arguments were tainted by hind-sight. The Court found that Blücher’s triangular drain products which are offered in the Netherlands infringe the patent, and ordered Blücher to pay the costs of the proceedings.

Read the judgment (in Dutch) here.

NL - Diamed v. Sanquin

Diamed c.s. v. Sanquin c.s. and Menarini c.s., Court of Appeal The Hague, the Netherlands, 26 March 2013, Case No. 105.003.971/01, with thanks to Willem Hoyng and Frank Eijsvogels, Hoyng Monegier, for sending in the judgment
 
Diamed c.s. owns two European Patents, EP 0194212 (“EP 212”) and EP 0305337 (“EP 337”). These patents relate to a method for detecting agglutinated erythrocytes.Sanquin c.s. manufactures and offers, being assisted by Menarini c.s., a diagnostic kit under the name Cellbind. Diamed c.s. claims that Sanquin c.s. and Menarini c.s. infringe the abovementioned patents. By way of counterclaim Sanquin c.s. demanded that the patents be nullified. The District Court denied the claims of Diamed c.s. after which Diamed c.s. appealed against this judgment.

In its interlocutory judgment the Court of Appeal ruled that, assuming that Cellbind works by the principle of affinity as stated by Sanquin c.s. instead of the method as claimed in the patents of Diamed c.s., Sanquin c.s. is not infringing the patents of Diamed c.s. However, the Court of Appeal found it necessary to appoint an independent expert to research one and another.

After the experts report the Court of Appeal follows his findings and judges that Cellbind does work according the principle of affinity and thus does not work according to the method of filtering as claimed in the patents of Diamed c.s. Therefore the Court of Appeal concludes that Sanquin c.s. is not infringing the patents, not literally nor by means of equivalence.

Read the judgment (in Dutch) here.

Head note: Wim Maas

NL - Danisco v Novozymes / Litigation costs post Bericap

Danisco A/S v. Novozymes A/S, Court of Appeal The Hague, 26 February 2013, Case no. 200.094.921/01

In these proceedings, Danisco sought to nullify Novozymes' patent, while Novozymes counterclaimed for infringement. This judgment only concerns the litigation costs, as the patent was invalidated by the EPO Board of Appeal pending the Dutch proceedings.

With regard to the litigation costs, Novozymes argued that in view of the Bericap decision of the CJEU (C-180/11 of 15 November 2012), Danisco could not claim reimbursement of the full litigation costs. According to Novozymes, it would follow from this decision that no reimbursement of full litigation costs is not possible in invalidation proceedings.

The Court of Appeal did not accept this argument. The court reasoned that the Bericap decision of the CJEU was limited to the specific circumstances of that case, in which there was no (apparent) threat of infringement. Since Danisco initiated the present proceedings with the aim to defend itself against an impending infringement claim, the litigation costs could be awarded. However, the court did lower the claimed award, as it found that some costs (for instance costs made by Danisco in anticipation of a potential negative outcome of the opposition proceedings) should not be taken into account.

Read the decision (in Dutch) here.

Head note: Paul van Dongen

NL - Astellas Pharma v. Synthon

Astellas Pharma Inc. v. Synthon B.V., District Court Eastern Netherlands/The Hague, The Netherlands, 1 February 2013, Case No.234794 / KG ZA 12-533, C/09/429848 / KG ZA 12-1189, with thanks to Willem Hoyng, Frank Eijsvogels and Robin van Kleeff, Hoyng Monegier, for sending in the judgment and a translation in English

Astellas holds a patent for a sustained release preparation, and claimed that Synthon’s sustained release tamsulosin products infringe  upon that patent. The PIL listed inter alia the Dutch entity Synthon B.V. (“Synthon”) as manufacturer of the products. Following leave by the Court, Astellas provisionally seized documents  at the premises of Synthon, for evidence that Synthon had indeed committed infringing or unlawful acts.

Subsequently, the provisional relief judge was requested to order Synthon to grant access to the documents.  This claim succeeded. The judge reiterated that access to documents which are seized as evidence can only be granted if claimant is able to show to a reasonable degree that there is an infringement, and is able to sufficiently rebut the arguments made by the other side that there is not. The confidentiality of the seized documents also plays a role: the higher the confidentiality, the more likely the infringement should be to gain access (and vice-versa).

NL - Bayer v. Sandoz

Bayer Pharma AG v. Sandoz B.V., District Court The Hague (preliminary relief judge), the Netherlands, 24 January 2013, case no. C/09/432919 / KG ZA 12-1391
 
Bayer is the owner of two process patents concerning the synthesis of the compound drospirenon.Sandoz has introduced a generic product which is manufactured by the Italian company Industriale Chimica (IC). IC also holds patents for the production of drospirenon.

In case of both patents invoked by Bayer, there is no literal infringement as IC applies another reagent/reactant in the process than the one specified in the claims of the concerned patent. The question is therefore in both cases whether the reagent/reactant used by IC can be regarded as equivalent measure. The judge comes to the conclusion that this is not the case. In its reasoning the court applies the function-way-result test, and concludes that it is insufficiently substantiated that the alternative compounds work in the same way. Furthermore the judge attaches value to the fact that the use of the alternative compounds is itself the subject of patent protection and has certain advantages compared to the use of the compounds mentioned in the processes patented by Bayer.

Read the judgment (in Dutch) here.

Head note: Paul van Dongen

NL - Remu v. Knoop Machinery & Waterking

Remu OY v. Knoop Machinery B.V. & Waterking B.V., District Court The Hague, The Netherlands, 9 January 2013, Case/Docket No. 415046 / HA ZA 12-354

Accelerated patent proceedings on the merits with respect to Remu's patent for a Pontoon crawler track assembly, EP 1 727 687 ("EP687"), the characterizing portion of which saw to the breadth of the pontoon crawler track assembly being adjustable, to allow both use in a narrowed position (eg. for road use) and a broadened position (eg. for maximum stability when operating in water).

Remu sought to enforce its patent against the two Dutch sister companies Knoop and Waterking, who both market amphibian tracked vehicles. In an earlier case of 2 November 2012, between Remu and RDS France SARL on one side and Sodineg SARL, Tecman SARL and Entreprise Leriche SAS on the other side, the French Tribunal de Grande Instance de Paris judged that claims 1, 2, 5, 6 and 10 of the French part of EP 687 were novel and inventive. The Court of The Hague finds differently, albeit with several additional pieces of prior art than were used in the French proceedings.

NL - Apple v. Samsung

Apple Inc. v. Samsung Electronics Co. Limited c.s., District Court The Hague, The Netherlands, 28 November 2012, Case/Docket No. 413294 / HA ZA 12-220

Proceedings on the merits with respect to Apple’s photo gallery “bounce-back” patent, EP 2 059 868. On 24 August 2011, the PI judge had provisionally held that Samsung’s Android 2.2.1 Galaxy products infringed upon that patent, but that this was not the case for the Galaxy products running Android 3.0 and higher. This in confirmed in the proceedings on the merits.

According to the Court, in the Android 3.0 products there is no “second movement” needed for skipping to the next photograph, but rather a movement which is longer than a certain threshold value. As a skilled man would interpret the features “first-” and “second” movement as alternating movements which thus follow one another in time, the Court held that the Galaxy 3.0 products did not meet this feature. This was held to be different for the Android 2.2.1 products, in which the skipping to a next photograph according to the Court would be co-dependent on the detection of a “second movement”, which, as allegedly confirmed by the description, would be covered by the claims. Not in dispute was that products that used the “blue flash” update  which Samsung had introduced after the PI decision had been rendered, did not infringe.

The Patent was moreover held to be valid.