What test should be applied to judge equivalence?
One of the topics that have kept our Courts busy over the last few years relates to which test should be applied to judge “equivalence”. Whereas the U.S.’s “same function-same way-same result” test has been accepted in cases involving mechanical patents, it has been discarded in cases dealing with chemical patents. In its judgment of 17 January 2008, the Barcelona Court of Appeal confirmed that in the case of chemical patents, the “three Catnic questions” test which the English Courts used to apply is a better test. The question is whether or not the Spanish Courts will stick to that test, since it was abandoned by the House of Lords in 2004. All this uncertainty could have been avoided if A [...]
Denmark: Linco Food Systems v Meyn Food Processing Technology
In this case the patentee (Meyn) was granted a patent (EP 0 530 868) on a device to clean out the intestines of poultry during slaughtering. The enforcement court in Denmark granted an injunction based on the patent-in-suit against a Danish company (Linco) which manufactured a similar device. The injunction was upheld on appeal. In the confirmatory action the High Court ruled in favor of the patentee, prohibiting the Danish company from producing and selling the device and dismissing Linco’s defence of invalidity of the patent-in-suit. The High Court’s decision was based on court-appointed experts’ testimony.
On appeal, Linco submitted a citation (Exhibit AT – a 1957 US patent) that had not [...]
Patent exhaustion applied to parts by the Italian Supreme Court
By decision of 9 June 2010, the Italian Supreme Court tackled the issue of patent exhaustion in a manner which may give rise to some debate. The case concerned a claim of infringement brought by Bavelloni, an Italian manufacturer of machines for glass processing, against competitor Bottero which had exhibited in a trade fair a machine mounting a device allegedly infringing a patent of Bavelloni’s. Bottero, however, claimed that that device was an original Bavelloni device. Bottero added that, as it had not completed the design and production of its own device on time for the trade fair, it had lawfully purchased a second-hand Bevelloni machine, taken off the relevant device, and applied it [...]
Unified patent litigation system incompatible with EU treaties – AG opinion
The Court of Justice of the European Union (“CJEU”) has been asked to consider whether the draft agreement for the proposed European Patent Litigation System is compatible with the European Union treaties. On 2 July 2010, Advocate General Kokott provided an opinion (which has only recently been made publicly available) advising the CJEU to find that, in its current draft, the proposed agreement is incompatible with the treaties.
Background
The original request for a ruling was made by the Council of the European Union on 6 July 2009, which asked the CJEU to answer the following question: “Is the envisaged agreement creating a unified patent litigation system (currently named ‘Euro [...]
You Shall Not Lie! – Cost Risk in Patent Proceedings
- By Eike Schaper,
for Kluwer IP Cases
The Duesseldorf Court of Appeal referred in a recent decision to the commandment “You shall not lie!” – with severe consequences as to the cost risk of patent proceedings (court order of 15 April 2010 – ref. I-2 W 10/10; InstGE 12, 107 – Du sollst nicht lügen!).
Under German law, the losing party has to bear the court fees as well as the statutory attorney fees of the winning party. Both fees are calculated according to a fee scale based on the value in dispute. The value in dispute is set by the court – usually in accordance with the plaintiff’s suggestion.
When filing its patent infringement action with the Duesseldorf District Court, the patentee had suggested a value in dispute [...]
Occlutech v. AGA, Court of Appeal, 22 June 2010
- By Sam Tuxford,
for Kluwer IP Cases
The Court of Appeal held that AGA’s patent was not infringed by Occlutech in a case of septal occlusion devices, which feature braided metal strands and have a collapsed configuration for delivery through a channel in a patient’s body.Occlutech’s devices, which feature strands that are welded at one end of the device were found to fall outside of the scope of AGA’s patent, which was construed to be limited to devices which clamp the strands on the opposed ends of the device.
Click here for the full text of this case. A summary of this case will be posted on http://www.KluwerIPCases.com.
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