The District Court of The Hague invalidated two patents for a lack of inventive step. The patents claimed to solve two separate problems of a known production method for glatiramer acetate. The court held that one problem would be solved as a bonus effect of applying common general knowledge. Solving a problem resulting from non-application of common general knowledge cannot make the application of common general knowledge inventive. The other problem would be known to the skilled person and the claimed solution would be obvious. The (potential) existence of an alternative solution does not affect the obviousness of the claimed solution.
In this case the FCJ discussed the criterion of “equivalence” for a non-literal infringement of a patent. The Court held that one has to assess all technical effects which have to be achieved with the patented features to solve the underlying technical problem. The entire combination of these effects forms the patented solution. For the assessment of an equivalent infringement one has to look at the entire combination of effects and may not distinguish between effects which might be “relevant to the invention” and “merely additional” effects.
The enlarged board of appeal of the European patent office allowed a petition for review of a board decision because the right to be heard had been denied. The decisive ground for the decision under review involved a new conclusion from a document that was in the proceedings. This conclusion could not be directly derived from submissions of the parties or notice from the board. The fact that the proprietor expressed a different opinion on the document, without notice of challenge from the opponent or the board, showed a denial of the right to be heard on the new conclusion.
An EPO board held that an appellant in a cross-appeal can be bound by an analogy of the bar against reformatio in peius, when filing a request later than with the grounds of appeal. When the appellant could have filed the request with the grounds of appeal, but filed the request only in response to the grounds of appeal of the cross-appellant, the appellant effectively only had the rights of a respondent and the bar against reformatio in peius applied analogously.
The CJEU decided on a referral by the District Court Düsseldorf with regard to the interpretation of Art. 102 TFEU in the context of patent infringement actions regarding standard essential patents (SEPs). The Court held that the owner of an SEP who seeks injunctive relief against an alleged infringer does not abuse a dominant position resulting from the fact that the patent is an SEP as long as certain requirements are met. Furthermore, Art. 102 TFEU does not prohibit the proprietor of an SEP from bringing an action for infringement against the alleged infringer seeking remedies for past acts of use of that patent.
If foreign counterparts of a European patent have been declared invalid in five European jurisdictions and the arguments in these court decisions are substantially convincing, the prima facie invalidity of the Swiss part of the same European patent is sufficiently established for the purposes of preliminary injunction proceedings.