An EPO board held that observations filed by third parties during inter parte appeal must be disregarded by the board, unless they concern amendments during opposition or appeal, in which case the board had discretion whether or not to consider the observations in the examination of the amendments. Also when a party to the appeal took position on third party facts and evidence, the board had to exercise its discretion. In contrast, EPO policy required opposition divisions to take position on the relevance of the third party observations in any case, treating them like late filed submissions.
In this judgment the Court of Appeals Düsseldorf held that the manifest preparation of a product for a specific use which is covered by a use claim can be seen in information on the packaging and in the patient information provided with the pharmaceutical product to the end user. It confirms earlier case law in that an infringement of a use claim requires a manifest preparation which clearly states that the product may be used for the patented indication (the specific medical use).
A patent applicant is not obliged to prove the industrial applicability of an invention. It is the Patent Office which must prove the lack thereof.
Arbitration courts established to resolve conflicts between patents and generic or reference medicaments do not have jurisdiction to decide on the validity of the patent, even when it is argued as a defence in an action for infringement. Transferring the authorization to introduce a generic medicament in the market to a third party is not, in itself, an infringement to the exclusive right granted by the patent and therefore is not prohibited in the scope of the arbitration provided for under Law No 62/2011.
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.
At a tradeshow in Düsseldorf the Defendant co-organized a so called “Turkish Pavilion” featuring several companies of the Turkish region “Samsun”. The Court held that this role of the Defendant was sufficient to be held liable for patent infringement, even where the Defendant itself did not manufacture or sell the products. Exhibiting at the tradeshow was considered as an offer for sale which would infringe the exclusive rights of the patentee.