In most systems, a patent is valid for 20 years from the filing date of the patent application. Patents are granted with a presumption of validity but no patent is safe from being challenged and declared (partially) invalid by national courts or, in the case of European patents, revoked by the European Patent Office. Often, a claim of invalidity of a patent is a reaction to an action of the patentee, in particular an infringement action.
On 8 November 2011, in the case of Fresenius v Carefusion, the English Court of Appeal declared that “the Earth Closet order should be consigned to the place that bears its name.” The “Earth Closet” or See v Scott Paine Order was an idiosyncratic but potentially very important principle of English patent law. The Order…
The creation of a Unified Patent Litigation System seems to have a lot of political momentum these days, with one proposal following the other at fairly short intervals. This blog discusses the latest Council Presidency proposal of a draft agreement on a Unified Patent Court and draft Statute of 26 October 2011. While a lot of desirable progress has been made, the current draft agreement is still far from being ready for signature and requires both thorough consideration and amendment in several quite important aspects, not least as regards finances.
The German Federal Court of Justice (FCJ) issued a nullity appeal judgment on 12 July 2011 in which the requirements for an amendment to be held allowable under Art. 123(2) EPC and Sec. 38 German Patent Act seem to have been further tightened as opposed to the previous practice. The decision (case number X ZR…
Co-author Christiaen Dekoninck The Ghent Court of Appeal dismissed the claims of the German patent holder Grumbach and its Dutch licensee, Bollegraaf Recycling Machinery, relating to the Carbo Separator, a paper sorting device sold by their Dutch competitor Wagensveld to the Stora Enso group’s Belgian subsidiary. The Court affirmed the earlier decision of the President…
The English High Court has refused to grant summary judgment to LG Electronics in relation to validity of certain patents, holding that, due to the uncertainty of the legal issue concerning the confidentiality of the prior disclosure relied on, the matter was not relevant for summary judgment. LG Electronics (“LG”) sued Sony for infringement of…
A supplementary protection certificate SPC granted for an enantiomer (escitalopram) cannot be declared void because a prior SPC was granted for the racemate (citalopram) when both the racemate and the enantiomer are protected by individual patents and thus are different products. This must be so because otherwise the enantiomer patent would be invalid for lack…
By Giovanni Gozzo and David Nilsson The Svea Court of Appeal partially invalidated the patent of respondent Dustcontrol, insofar as claim 1 of the patent was concerned. The Court held that it could not be deduced from claim 1 that the filter cartridge at issue in claim 1 must be a unit that neither can…
As the readers will know, the complex architecture of the European patent system allows third parties to challenge the validity of a patent by filing an opposition before the European Patent Office (“EPO”), by filing a revocation action before national Courts, or by using both routes. In some cases, this has given rise to the…
The difference between “inventiveness” within the meaning of the Austrian Patent Act and “inventive step” within the meaning of the Austrian Utility Model Act is too small to distinguish between these two criteria. Thus, the inventive step pursuant to § 1(1) Utility Model Act requires the same qualitative criteria as inventiveness pursuant to § 1(1)…
In view of the principles outlined in the recent decision T 777/08 it has to be expected that in the future the inventiveness of a novel polymorph form of a pharmaceutically active compound will be acknowledged only if the novel polymorph form is associated with an unexpected pharmaceutical activity, while improved physical and/or physicochemical properties would not be sufficient. Also, an inventive step might be acknowledged if an inventive activity is required to actually manufacture the polymorph.
