Mundipharma v. Cimex et al., District Court The Hague (Rechtbank Den Haag), 30 September 2009
- By Klaas de Vries,
for Kluwer IP Cases
The District Court of The Hague finds that the generic products of the defendants fall under the scope of protection of both of Mundipharma’s patents, which are related to controlled release oxycodone formulations. According to the District Court, the scope of protection of the patents is not limited to products wherein all oxycodone is within the coating which controls its release. Furthermore, the term ‘spheronising agent’ is not deemed to be limited to agents that have assisted in forming spheroids but also comprises materials that assist in maintaining the spherical shape of a starting compound.
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Imperceptibly different image/HOURPLACE, European Patent Office (EPO Board of Appeal), 30 September 2009
- By Ferry van Looijengoed,
for Kluwer IP Cases
The appellant in this case filed a statement of grounds against the decision of the examining division to refuse a patent application. For the main request this statement only stated that it was believed that the application met the requirements of the European Patent Convention and maintained the arguments presented in the examination procedure. For an auxiliary request, the appellant provided further arguments. The Board of Appeal decided that the appeal as a whole was admissible. However, the main request was not, since the appellant’s arguments were already dealt with in the decision of the examining division and the Board could not understand immediately from the statement of grounds wh [...]
Unilever v. Plasticos Gonzalez & Colgate-Palmolive, European Patent Office (EPO Board of Appeal), 28 September 2009
- By Lars de Haas,
for Kluwer IP Cases
A claim violates Article 123(2) EPC when an added claim term has two reasonable interpretations, one of which violates article 123(2) EPC. An amendment selecting the interpretation that does not violate Article 123(2) is not allowed during opposition because of Article 123(3) EPC. In the view of the Board the proprietor should not be able to reap any benefit from the fact that an added undisclosed feature is ambiguous, with regard to an added undisclosed feature that is not. If the Board were to construe an ambiguous undisclosed term in a manner favourable to the proprietor it would act against the principle of a fair balance of interests underlying Articles 123(2) and (3) EPC.
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Dosage Regimen – Objection to Member EBoA, European Patent Office (EPO Enlarged Board of Appeal), 15 September 2009
- By Bart van Weezenbeek,
for Kluwer IP Cases
1. According to the EPC, the right to object to a member of a Board of Appeal or of the Enlarged Board of Appeal is reserved to the party to the proceedings who suspects partiality in such a member. 2. It remains nevertheless that pursuant to Article 4(1) RPEBA, if the Enlarged Board of Appeal has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings, then the procedure of Article 24(4) EPC shall be applied. 3. To the extent that participation in a referral pending before the Enlarged Board of Appeal of a Board member having already dealt with the matter as a member of a Board of Appeal is not excluded by [...]
Perfused microtissue/MIT, European Patent Office (EPO Board of Appeal), 04 September 2009
- By Bart van Weezenbeek,
for Kluwer IP Cases
Following decision G 1/03, the Board concluded that a disclaimer that is used to remove subject-matter falling under the prohibition of Article 53(a) EPC in combination with Rule 28(c) EPC, is allowable.
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[...]Escitalopram, Federal Court of Justice (Bundesgerichtshof), 10 September 2009
- By Clemens Rübel,
for Kluwer IP Cases
The Federal Court of Justice further clarifies the scope of disclosure of a prior art document and the criteria for determining inventive step after the landmark decision ‘Olanzapin’. More specifically, the Court ruled that: a) a prior art disclosure of an enantiomeric compound does not clearly and unambiguously disclose the actual enantiomers unless the disclosure also makes available a method for readily obtaining said enantiomers; b) if the skilled person is faced with the problem of finding an alternative pharmaceutical and if several compounds or classes of compounds are available as such an alternative the selection of a specific compound is already part of the solution of the prob [...]
