Straßenbaumaschine/Road Construction Device, Federal Court of Justice (Bundesgerichtshof), 31 March 2009
- By Clemens Rübel,
for Kluwer IP Cases
A patent infringement action may not be rejected on the grounds that a feature of the asserted patent claim seems to be unclear in its technical meaning. A lack of clarity may only give reason to limit the feature to the narrowest reasonable meaning.
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[...]Technical Equivalents, Supreme Court (Højesteret), 27 March 2009
- By Peter-Ulrik Plesner,
for Kluwer IP Cases
In this decision the Danish Supreme Court for the first time uses equivalents as a legal base for violation of a patent. Equivalents have long been a part of Danish patent law, but the Supreme Court has been cautious and reserved concerning their use. The respondent in this case had a Danish patent, concerning a method for corrosion-protection of a water system. The appellant made a system that had similarities to the system of the respondent. The respondent’s patent concerned the actual method, not the specific facility in which the method was used. The Supreme Court held that, even if appellant’s system was found to be outside the exact wording of the respondent’s patent, the appellant wou [...]
Case comment on Judgment of 27/03/2009, Provincial Court Barcelona (Audiencia Provincial Barcelona), 27 March 2009
The Provincial Court of Barcelona dismissed an appeal filed against a judgment from the Commercial Court number 4 of Barcelona, which had concluded that the product claims of the patent in suit were valid and enforceable in Spain under Articles 27.1 and 70.7 of TRIPS. The main interest of the judgment lies in the fact that it has further confirmed that, under Spanish law, Articles 27.1 and 70.7 of TRIPS are self-executing and that the fading effects of the Spanish Reservation to the European Patent Convention can no longer be invoked against patents falling within the scope of application of Articles 27.1 and 70 of TRIPS. In particular, the Court emphasized that since patent law has not been [...]
Nassreinigung II/Wet Cleaning II, Federal Court of Justice (Bundesgerichtshof), 26 March 2009
- By Clemens Rübel,
for Kluwer IP Cases
The Federal Court of Justice held that a licensee’s failure to exploit an exclusive patent license can justify termination of the license agreement by the licensor, even if there is no breach of contract or default by the licensee. From an objective licensor’s perspective, however, there must be no prospect of an improvement in the situation in the near future, particularly if further circumstances are given that serve to undermine the licensor’s confidence in his contract partner.
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[...]Oxycodone, Federal Patent Court (Bundespatentgericht), 24 March 2009
- By Anja Lunze,
for Kluwer IP Cases
The Federal Patent Court has decided that an inventive step according to Article 56 EPC is not established if the person skilled in the art has only to conduct routine exploratory analysis based on the prior art. Against this legal background the Federal Patent Court nullified the patent in suit arguing that in a situation where the prior art already teaches the formulation for a retard presentation of an active agent the retard formulation for the hydrochloride of this active agent could be found without involving inventive steps, especially if the prior art also teaches the formulation for a retard presentation of a hydrochlorid of a similar active agent.
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Sequence analysis/MEDICAL BIOSYSTEMS, European Patent Office (EPO Board of Appeal), 23 March 2009
- By Bart van Weezenbeek,
for Kluwer IP Cases
When the transitional provisions for EPC 2000 are silent, the Board has to establish which legal text is applicable. In that case the Board has to take into account that it is undesirable to use both different versions of the EPC over a prolonged period of time and that there is no indication that the parallel use of new and old versions of EPC articles covering appeal proceedings, is intended.
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