The FCJ held that the priority of an earlier application may be rightfully claimed if the technical information described for a specific embodiment or otherwise in in the application is seen by the skilled person as an example for the more general invention disclosed in the later application and if this more general teaching was disclosed in the prior application as part of the invention.
The Stockholm District Court found that the product did not fall under the wording of the patent claim or the doctrine of equivalence. During the application procedure before EPO, the patent holder had intentionally limited the scope of protection in order to avoid prior art. The features added to the patent claim during the application procedure meant that the defendant’s product could not constitute infringement under the wording of the patent claim, and considering this limitation, the Court further concluded that the doctrine of equivalence could not be applied to expand the scope of protection.
The FCJ held that legal provisions in force at the priority date must be taken into consideration when assessing novelty and inventive step of an invention. These legal provisions may incite the skilled person to work in a certain direction so that this makes the invention obvious.
The Court of Appeal held that the esomeprazole salt in Krka’s product with an optical purity of 98.8 – 99.5 % e.e. (enantiomeric excess) was an “optically pure compound” as claimed in AstraZeneca’s patent NO 307 378. The Court of Appeal upheld the judgment of the Oslo District Court granting AstraZeneca an injunction preventing Krka from marketing its generic esomeprazole product in Norway and awarding AstraZeneca NOK 14 mill in damages for Krka’s past sales of its product.
The Bolar exemption must be interpreted narrowly in order not to affect the patent holder’s exclusive rights. The privilege of the generic drug manufacturers who are allowed to conduct clinical trials in order to seek regulatory approval for their therapeutic products based on patented inventions does not apply to their third-party suppliers. Thus, manufacturing of patented pharmaceutical ingredients and offering them to generic drug companies constitutes patent infringement.
The Oslo District Court held that Jets AS’ patent for a liquid seal pump of the helical screw type for use in vacuum drainage systems lacked novelty over one of Jets’ own patents. Despite the court’s finding on invalidity, the court did not consider Jets warning letter to a customer of its competitor, Evac Oy, in conflict with good business practice among traders pursuant to §25 of the Norwegian Marketing Control Act.