On February 13, 2015 the Eastern High Court of Denmark issued a decision in an appeal in interlocutory proceedings regarding an application for an interim injunction against the marketing and sale of generic medicines (birth-control pills) containing, inter alia, drospirenone.
Bayer is the proprietor of two patents regarding a method for producing drospirenone. On June 25, 2013 Bayer (immediately before the administration of justice reform on the jurisdiction of the Maritime and Commercial Court in proceedings regarding interim injunctions concerning intellectual property entered into force) filed an application for an interim injunction against Sandoz’ marketing and sale of generic pharmace [...]
The doctrine of equivalence has seen some kind of renaissance in German case law recently. In short words, there are three questions to be asked to decide for equivalent infringement if there is no literal infringement. The first one being the question about the effect of the different solution. Do the means used to solve the problem underlying the invention objectively have the same effect? If so, would this different solution have been discovered by the man skilled in the art at the time of the priority date? The objective of this second question to be asked is whether it was kind of obvious to use the different approach instead even though it does not fall under the literal meaning of the [...]
Before diving into this year’s Oktoberfest with the Munich IP community, colleague contributor Thorsten Bausch summarized the German Federal Court of Justice’s case law of Summer 2014. As the days of raising beer mugs and polka dancing come to an end in Munich, so does the Dutch Summer (finally). Time for an overview of what occupied the Dutch Courts these past months.
As in Germany, the doctrine of equivalence was considered by the Hague District Court. In the MBI/Shimano case the District Court applied the Dutch Supreme Court’s Medinol/Abbott findings on equivalence of a few months earlier (on stent litigation which meandered through Europe for years).
In Medinol/Abbott the Supreme C [...]
To the extent that summer 2014 existed at all in central Europe, experts agree that it is now definitely over. There is some controversy whether we ever had summer in Germany this year, but at least it was proven that life without air conditioning is possible.
Meanwhile, the Munich IP Community is busily preparing for Oktoberfest starting tomorrow. So while we are all still sober, time for a litte summary on the latest developments in the case law of the German Federal Court of Justice (FCJ) in “Summer” 2014.
In one decision (X ZR 36/13), the FCJ took the opportunity to explain its current thinking on the scope of equivalence a bit further. In the decision under appeal, the Higher Regional C [...]
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.
Many practitioners in Germany thought the doctrine of equivalence to be rather at its end following two Supreme Court (BGH)-decisions in 2011 (“Okklusionsvorrichtung” and “Dyglycidverbindung”). Now, the renowned Higher Regional Court Duesseldorf has – in my eyes, correctly – made clear that the old dog is still alive.
According to standard practice of the BGH, equivalence has three prerequisites: (i) an identical effect attributed to the alternative means; (ii) perceptibility of the alternative solution for the skilled person; and (iii) equivalence in value.
The BGH uses the following formula to describe the third prerequisite (equivalence in value) in detail: The ref [...]