Yeda v. OCNL, Administrative Law Division of the Council of State (Afdeling Bestuursrechtspraak Raad van State), 27 May 2009
The Administrative Law Division of the Council of State holds that the District Court has rightfully found that the Patent Office was not obligated to issue a Supplementary Protection Certificate for the medicinal product cetuximab. Article 73 (1) of the Dutch Patents Act 1995 on indirect infringement, does not in all circumstances protect the patentee against the sale or distribution of cetuximab, an essential means regarding the patented combination of cetuximab and irinotecan.
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[...]Device Diagnostics/Sony, European Patent Office (EPO Board of Appeal), 27 May 2009
- By Ferry van Looijengoed,
for Kluwer IP Cases
This case concerns a referral to the Enlarged Board of Appeal regarding the interpretation of the term ‘pending application’ in the wording of Rule 25(1) EPC 1973. In the appealed decision from the receiving section, the receiving section held that from the date of the refusal by an examining division an application was no longer pending as long as during the time limit for filing an appeal no appeal is filed. In contrast, the appellant asserted that the term ‘pending application’ should be construed that the pending status of an application only ends when the refusal becomes final.
The Legal Board of Appeal held that the wording of the EPC and the relevant case law of the Boards of [...]
Aerotel v. Wavecrest, Court of Appeal Civil Division (Court of Appeal Civil Division), 20 May 2009
- By Sam Tuxford,
for Kluwer IP Cases
The Court of Appeal upheld the High Court’s finding that Aerotel’s Patent relating to a method of making pre-paid landline telephone calls was invalid for want of inventive step over the principal prior art (the WATS system). Having made this finding it was unnecessary to consider Aerotel’s other grounds of appeal.Further, Aerotel’s arguments of commercial success were rejected on the basis that its evidence did not establish that any telephone pre-payment businesses relied on the Patent’s teaching; although businesses did enter into license agreements under the Patent the evidence did not establish that they did so for any reason other than for the avoidance of the inherent risks of litigat [...]
Hydrogen-absorbing composition/PRYSMIAN, European Patent Office (EPO Board of Appeal), 14 May 2009
- By Ferry van Looijengoed,
for Kluwer IP Cases
During appeal proceedings, the appellant argued lack of inventive step on the basis of public prior use of a composition for making the claimed product. The prior use appeared to relate to an ordinary commercial transaction. The patentee argued that the offer, sale and delivery of the product were only for test purposes. The Board of Appeal held that the mere fact that a product has been delivered possibly for carrying out tests in what appears to be the result of an ordinary commercial transaction, does not constitute by itself a sufficient condition for concluding that the product was necessarily delivered under an implicit confidentiality agreement. The Board of Appeal also concluded that [...]
Ratiopharm v. Sepracor, District Court The Hague (Rechtbank Den Haag), 13 May 2009
- By Mark van Gardingen, Brinkhof,
for Kluwer IP Cases
The Hague District Court nullified Sepracor’s patent for compositions for treating allergic disorders using (-) cetirizine (levociterizine) on the basis of lack of inventive step. The Court considered that the person skilled in the art knows that the pharmaceutical efficacy of a racemic mixture generally can be attributed to one of the enantiomers. At the priority date the skilled person would have researched the antihistamic activity of levoceterizine with his common general knowledge as his ‘tools’ and would have come to the claimed invention. Researching the individual enantiomers is therefore obvious and cannot lead to the grant of a patent.
The full text and summary of this case wil [...]
Sensing sub-groups of memory elements/RAMBUS, European Patent Office (EPO Board of Appeal), 12 May 2009
- By Ferry van Looijengoed,
for Kluwer IP Cases
The claims of the patent in suit related to a memory for sensing sub-groups of memory cells that required the activation of word line segments and corresponding sets of sense amplifiers in combination. The patentee argued that from one of the objectives of the invention mentioned in the original application, the skilled person could derive that the word line segments and the sense amplifiers could also be activated separately. The Board of Appeal held that generally the mere statement of an object is not a sufficient indication that all possible arrangements satisfying this objective were disclosed. The claims, according to the Board of Appeal, constitute an important element for determining [...]
