Sahajanand v. Angiotech, Court of Appeal The Hague (Gerechtshof Den Haag), 27 January 2009
In this judgment the Court of Appeal considers the appellant’s claim for invalidation of the patent inadmissible as he did not call the co-proprietor of the patent to join the proceedings. While considered valid on substantive grounds, the claim in question needs to be rephrased to fulfill the industrial applicability. As nullity of the patent is in this case purely stated as a defense, the proprietor has the right to rephrase, but has to show the co-proprietor agrees to the suggested rephrasing.
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[...]Data carrier, Administrative Court of Voivodeship Warsaw (Wojewódzki Sąd Administracyjny w Warszawie), 26 January 2009
In this case the Court confirmed beyond any doubt that the Polish Patent Office is not an administrative body that shall automatically approve patents granted by the European Patent Office. However, the Patent Office may not base its decision solely on its own convictions and the views expressed in the judgment of a British Court (i. c. Aerotel/Mcrossan). The Court held that this judgment is not consistent with the views presented by the EPO Boards of Appeal and therefore can not be recognized as sufficient to justify the refusal to grant a patent when the filled application is the subject of a European patent.
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CSL Behring v. Common Services Agency – insufficiency, European Patent Office (Appeals Court), 23 January 2009
- By Mark Einerhand,
for Kluwer IP Cases
The degree of effectiveness of the invention (here: the removal of prion proteins) is an issue related to the technical problem solved by the invention. This is to be considered when assessing inventive step, and is thus not relevant for sufficiency of disclosure. As the invention is sufficiently disclosed in the specification, the fact that none of the examples illustrate the claimed invention has no negative impact on the sufficiency of disclosure since a worked example is not necessary for the skilled person to be able to carry out the invention.
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[...]Data processing method, Federal Court of Justice (Bundesgerichtshof), 20 January 2009
- By Anja Lunze,
for Kluwer IP Cases
The Federal Court of Justice clarified the interdependencies of its case law concerning computer implemented inventions. An application has technical character if a non technical feature is inserted in a technical process. The comprehensive inspection of the object of the application does not allow discretionary weighing of technical and nontechnical parts. Due to the exemption from patentability of Section 1 Paragraph 3 No. 3 German Patents Act, the application has to solve a technical problem by technical means. Therefore only technical aspects are relevant to assert the exemption.
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Waters v. Agilent et al., Court of First Instance Paris (Tribunal de Grande Instance Paris), 14 Januari 2009
- By Bruno Weil,
for Kluwer IP Cases
This case provides a rather complete example of how to calculate damages in a patent infringement action in France. When the patent owner directly works out his patent in France, damages are based on lost profits and completed by additional royalties if the lost profits are below the amount of total infringing sales. When the patent owner does not directly work out his patent or cannot provide the information of production costs to calculate the margin of profits, damages are based on royalties. The infringer is held to pay springboard damages if, after the termination of the infringements, he continues profiting from the commercial advantages remaining from the infringing sales.
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