Competence of the Dutch courts is determined solely based on facts furnished by plaintiff. Jurisdiction for patent entitlement claims is governed by the Protocol on Recognition to the EPC, not by the Brussels I Regulation.
Conflicts between patents and generic medicaments are mandatorily solved by arbitration. Requests of authorization to introduce generic medicaments in the market (AIM) are published by the Portuguese Medicaments Office (INFARMED) and interested parties have a term of 30 days to oppose their industrial property rights. Upon the termination of the term, patents cannot be enforced against the holders of the AIM before arbitration or state courts.
The statute which provides that holders of industrial property rights can resort only to arbitration instead of directly resorting to state courts concerning provisional or interim measures (Article 2 of Law No 62/2011 of 12 December) is not contrary to the Portuguese constitution.
However, the statute according to which a patent cannot be enforced against the holder of an authorization to introduce in the market (AIM) or the applicant to an AIM beyond the term of 30 days after the publication by Infarmed of the request (Article 3(1) of Law 62/2011 of 12 December) is contrary to the constitution.
When defining the technical problem underlying an invention, it may not simply be assumed that the person skilled in the art needed to address a particular problem. On the contrary, the technical problem must be formulated so generally and neutrally that the question as to which incentives a person skilled in the art obtained from the state of art, arises only when examining inventive step.
(a) Advantages of the invention that have only become evident once the invention was made, and at which therefore the skilled person would not have directed his efforts to further develop the state of the art, may not be used to define the technical problem underlying the invention (the Aufgabe of the invention).
(b) Depending on the conditions of the technical field and the circumstances of the individual case, any of several different ways to solve the problem can be regarded as obvious.
In its decision 24 April 2015, the Borgarting Court of Appeal upheld a decision from the Oslo District Court revoking Genentech’s Norwegian patent NO 323 557 (the ’557-patent) which concerns formulations of pharmaceutical proteins, including trastuzumab. Trastuzumab is the active ingredient in Genentech’s product Herceptin.
Hospira successfully argued that the disputed claims of the ’557-patent were invalid due to a lack of inventive step. The Court of Appealheld that the patent was nothing other than the result of a routine approach to the problem based on screening of commonly known additives, and the application of commonly known technology.
A full summary of this case has been published [...]