The juxtapositon of patent limitations in national nullity proceedings and before national patent offices on the one hand and according to article 105a EPC on the other hand is a hotly debated issue not only in Switzerland.
In a recently published decision of 2 June 2014 (4A_541/2013), the Swiss Federal Supreme Court had to decide – inter alia – whether the limitation of the European Patent 1 508 436 according to article 105a EPC which only took place after the revocation of the Swiss portion of the patent by the Federal Patent Court must still be taken into account.
In brief, claimant requested the nullity of EP 1 508 436 before the Swiss Federal Patent Court.
The patent relates [...]
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 [...]
In the oral proceedings held in the EPO appeal case T 1760/11 the Board of Appeal (BoA) 3.3.01 selected one single closest prior art (CPA) document for the inventive step assessment and then denied the opponents the opportunity to present inventive step attacks starting from other CPAs. Petitions for review under Article 112a EPC were filed. The BoA’s denial did not constitute a violation of the right to be heard, said the Enlarged Board of Appeal (EBA) in the decisions R 5/13 and (identical) R 9/13 to R13/13.
The underlying Case of T 1760/11
The issue under discussion was the assessment of inventive step. The Opposition Division had earlier revoked the patent inter alia for lack of inventiv [...]
The FCJ held that legal provisions in force at the priority date must be taken into consideration when assessing novelty and inventive step of an invention. These legal provisions may incite the skilled person to work in a certain direction so that this makes the invention obvious.
The development of Herceptin (trastuzumab) in the late 1980s and 1990s is one of the most remarkable advances in the treatment of breast cancer. The story of the drug and its pioneer, the “velvet jackhammer”, Dennis Slamon, is neatly summarised in Siddhartha Mukherjee’s award winning novel: “The Emperor of All Maladies – a Biography of Cancer” – a fascinating if not necessarily uplifting read.
In short, unlike traditional chemotherapy, trastuzumab is a monoclonal antibody which specifically targets a receptor known as HER-2 which is involved in the development of breast cancer. No-one disputes that the development of Herceptin was a landmark advance in the field of oncology – [...]
The board held that a document of speculative nature could not objectively be considered as a realistic starting point or the most promising springboard towards the claimed invention: the document was no more than a speculative review of what might be potentially feasible in the future and no concrete realization of the claimed type of product was described therein.