The Italian Supreme Court on prior use
By decision of 5 April 2012, no. 5497, the Italian Supreme Court resolved an interesting case concerning the application of Article 68 (3) Italian IP Code, according to which “Whoever, in the course of 12 months preceding the filing date of the patent application or its priority date, has made use of the invention in its business, may continue making use of the same within the limits of the pior use”. The case concerned the infringement by Fidia Farmaceutici S.p.A. of two patents held by Chemi S.p.a.: one, filed on 28 April 1999 and claiming a process for the preparation of phosphatidylserine (Ps); the other, filed on 5 December 2001 and claiming a process for the purification of the sam [...]
Software patents in Poland? YES!
The Polish Supreme Administrative Court has recently recognized a contradiction between the decisions of the Polish Patent Office regarding computer-implemented inventions and the practice of the European Patent Office (EPO). However, it is too early to say for certain whether Polish administrative courts have definitely changed their approach to so-called software patents.
In a recent patent case, the Polish Supreme Administrative Court invalidated a decision issued in 2007 by the Polish Patent Office which refused to grant a patent for an invention related to digital electronics. Pursuant to its longstanding practice in the area of so-called software patents, the Polish Patent Office held [...]
Simple patent licences in insolvency
By Stephan von Petersdorff-Campen
Under paragraph 103 of the German Insolvency Act, an insolvency practitioner has the right to choose whether or not to honour existing contracts of the insolvent company. Does this right also apply for any patent licences granted by the insolvent company?
The Regional Court Munich has ruled in a case in which the insolvent patent holder had granted a simple licence to a third party (judgment of 9 February 2012 – Az. 7 O 1906/11). Astonishingly, there is currently no case law for such a constellation – after all, it is of substantial financial importance for the licensee that any investments in manufacturing plants, warehouses and marketing be safeguarded [...]
Preliminary Injunction: Condition and Obstacle
In a decision of 21 March 2012, the Cour d’Appel of Paris ruled on the issue of the appraisal which the French judge has to make when a request for a preliminary injunction against acts allegedly infringing a patent or an SPC is referred to him.
Novartis AG is the holder and SAS Novartis Pharma is the licensee of French patent FR 88 02 597 and of SPC No. 98C0033, both relating to “Rivastigmine”, which is a phenyl carbamate with anticholinesterase activity useful in the treatment of senile dementia.
Rivastigmine is marketed by SAS Novartis Pharma in France, under the name Exelon, for the symptomatic treatment of Alzheimer’s disease and Parkinson’s-related dementia.
The rights on [...]
Is the Danish enforcement regimen finally to be reformed?
For many years in Denmark, interlocutory injunction proceedings have been organized under the aegis of the bailiff’s department of the municipal courts. This has entailed a number of disadvantages, not least in relation to patent cases. In most other countries it is considered a necessary pre-requisite that the presiding judge in such proceedings has experience with patent litigation but also, preferably, at least a general understanding of the technical field – be it mechanical, chemical or other – relevant to the litigation in question. For many years the practice in Denmark has been a source of great discontent on the part of all parties involved in patent litigation in Denmark.
Again [...]
Painting a picture of prior use anticipation attacks
When does the demonstration of a model at a trade fair, or a similar limited availability of a product, constitute novelty-destroying prior disclosure? Although it will depend on the patent claims, the public’s opportunity to investigate the model may be important as demonstrated in the recent case of Wagner v Earlex*.
As of the implementation of the EPC, prior use in and of itself no longer anticipates a patent claim under UK patent law. The English courts have also now adopted the EPO approach on ‘availability to the public’ (as set out by the Enlarged Board in decision G1/92), although the English courts refer to the requirement for an ‘enabling disclosure’. If the person sk [...]
