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Danish Supreme Court decision on preemptory invalidity in relation to a patent application (Dupont/Danisco v. Novozymes)

We have previously reported (post 28 August 2012) on ongoing litigation in Denmark between DuPont/Danisco and Novozymes resulting at the time in the grant of an interlocutory injunction being firstly granted and then revoked as the patent-in-suit was subsequently invalidated.

In a more recent development, DuPont/Danisco filed suit at the Maritime & Commercial Court (MCC) claiming that Novozymes be ordered to acknowledge that a patent application, when and if ultimately granted, should be held invalid in Denmark.

Novozymes argued, principally, that the action be dismissed and in the alternative that Novozymes be aquitted. The principal plea for dismissal was then made the subject of separate [...]

Can the validity presumption in Danish PI proceedings be weakened due to lacking prosecution steps?

Since July 2013 when the Danish Maritime & Commercial Court (MCC) took over as IPR specialty court in Denmark for PI cases also, the technical judges have taken part in the adjudication of PI patent cases also. Although the MCC has no legal basis to render judgement declaring patents in the course of PI proceedings, the fact that the bench is now made up of one legal judge and two technical judges in practice means that a well-documented invalidity defence may prove fruitful, whereas the invalidity defences in the past were almost invariably turned down by the bailiff’s who presided over patent PI cases due to the court’s lack of technical insight.
In a recent case (F&H A/S v. Bodum (Skandin [...]

The invalidity defense in Danish PI proceedings – the times are changing

The Danish Maritime & Commercial Court recently granted an interlocutory injunction in a patent dispute relating to 2nd medical use claims (Novartis v. Orifarm Generics case A-0006-14)).

The Novartis patent claim language included a specification for a TTS (transdermal therapeutic system) for administering Rivastigmine in the treatment of Alzheimers:

“Rivastigmine for use in a method of preventing, treating or delaying progression of dementia or Alzheimer’s disease,
wherein the rivastigmine is administered in a TTS and the starting dose is that of a bilayer TTS of 5 cm2 with a
loaded dose of 9 mg rivastigmine, wherein one layer: …” (highlighted by me).

When Orifarm Generics launched a TT [...]

Local UPC chamber to be set up in Denmark

On Friday, 21 February 2014, the Danish Government announced its plans to establish a local division of the UPC in Copenhagen if the Danish referendum on Denmark’s accession to the UPC should turn out positive.

The decision is the result of a political agreement with almost all Danish parties represented in parliament and is widely seen as a counter-move to address concerns voiced by parties in opposition to Denmark’s accession to the UPC. Danish UPC sceptics have expressed concerns in relation to Danish SMEs being forced to conduct proceedings in foreign jurisdictions – not just as plaintiffs, but – perhaps more importantly – as defendants (which, by far, would appear to the role in whi [...]

Danes forced to have have referendum on UPC

As readers of this blog may recall, the Danish government has for some time attempted to persuade a 5/6 majoirity of the Danish parliament to agree to cast the vote in favour of Danish accession to the UPC.

Two political parties represented in the Danish parliament have, however, remained staunch opponents of Denmark joining the UPC – the Danish People’s Party (right wing) and the Unity List (left wing).

Both made up of outspoken EU-sceptics, they have opposed Danish accession for somewhat different – and in some cases also differing – reasons and the Danish government appears both to have tried to address the concerns raised as well as to secure the necessary 5/6 majority through negotiatio [...]

Danish supreme court applies the doctrine of equivalents and acknowledges estoppel

In 1984 Albert Hedegaard submitted a national patent application to the Danish Patent Office concerning an air-assisted device for spraying crops with pesticides.

Hardi International A/S filed an opposition against the patent application with the Danish Patent Office. When finally granted in 1996, the patent had been substantially limited and the claims had been amended several times as a consequence of opposition proceedings at the Danish Patent Office as well as the Danish Board of Appeal.

After an administrative appeal of the decision to grant had been heard and the patent had been upheld, Hedegaard filed an infringement action against Hardi in 1999. Hardi in turn filed a counter-claim o [...]

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