The FCJ held that the Defendant in a nullity action is only required to prepare an auxiliary request following the preliminary opinion of the Federal Patent Court which takes those aspects into consideration which were mentioned by the Patent Court. In general, there is no reason for the Defendant to prepare additional auxiliary requests with regard to other attacks which were not addressed by the Patent Court in the preliminary opinion or which were considered by the Patent Court as not successful.
A panel of the Enlarged Board of Appeal (EBA) of the EPO rejected a request to replace the EBA chairman for suspected partiality. The reasons for allowing such a request in decision R19/12 had since been removed because the chairman had discontinued all his managerial activities in the senior management committees of the EPO. Under the new circumstances it remained for the chairman to judge in each individual case to preserve a balance between his potentially conflicting judicial duties and his duties as vice-president of the EPO. Until proven otherwise, the chairman was presumed thus to avoid partiality.
Goods placed in transit proceedings do not infringe a patent in the transit country. It is not relevant whether the goods were placed in so-called “T1” external transit proceedings or in “T2” transit proceedings where goods are declared to be released for free circulation on the market of the European Union and are forwarded without sealing. Patent infringement may only be assumed if the goods are subject to a sales transaction in the transit country or if the goods are imported for this purpose. This must be examined on a case-by-case basis.
The District Court The Hague finds that it is competent based on Article 7 Dutch Code of Civil Procedure (Article 6(1) Brussels I / Article 8(1) Brussels Ibis – plurality of defendants) even though the article’s preconditions are no longer met.
The Board of Appeal rejected an attempt to apply the fiction of novelty of “medical” substances and compositions of article 54(5) EPC to a dialysis membrane. Contrary to T2003/08 the claimed dialysis membrane did not contain any further substance that might constitute an active ingredient. With reference to arguments in T2003/08, the board noted that it was not decisive that the dialysis membrane could perform the same function as a drug. The board also did not consider the membrane a single-use product consumed during use, because the reason for not re-using merely was fouling, which could theoretically be removed.
The Bulgarian Patent Office refused to issue a supplementary protection certificate for a medical product comprising three components as one of them was not within the scope of protection of the basic patent. The decision of the Patent Office was first annulled by the first instance court but subsequently upheld by the Bulgarian Supreme Administrative Court.