An atrial septal defect is a serious heart problem that restricts
blood flow between the left and right atria via the interatrial septum.
AGA Medical Corporation owns a patent on a medical device that can be
applied through a catheter in the patient's heart to close the septum.
Occlutech GmbH delivers such devices. In an infringement procedure, the
Court of First Instance judged that Occlutech's devices do not comply
with the literal wording of AGA's patent, nor are they within the scope
of protection when interpreting the claims in accordance with the
Protocol for article 69 EPC. In a subsequent appeal, this decision was
In the review proceedings before the Dutch Supreme Court, AGA pleaded
that the appeal court incorrectly applied the article 69 EPC Protocol.
AGA's reasoning was primarily based on the question of equivalence, the
explanation of a claimed feature and the role of the examination file
history. In that respect AGA argued that the appeal court should not
have taken into account a reply to an examination report where AGA
explained what it considers as its invention over the prior art.
The Supreme Court confirmed its 1995 decision (Ciba/Geigy) to the
effect that "the gist of the invention behind the wording of the claim",
and "what is essential for the invention for which protection is
sought" should be considered as a viewpoint and not as a starting point.
In addition, the Supreme Court holds that it is not necessary that each
of the possibly relevant aspects for the explanation of the scope of
protection identified in Ciba/Geigy be considered in every case. This
depends on the nature of the patent and the description of the invention
as well as on the debate between the parties. The judgment also reminds
the reader that the explanation of a patent is strongly interwoven with
evaluations of a factual nature, so that it can be investigated only to
a limited extent during legal review. The Supreme Court further
confirmed that the role of the examination file is not limited to
subject matter that the patent owner had not claimed before or which the
owner had abandoned.
|Dirk de Jong|
Vereenigde Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99