The Netherlands: A matter of fine print

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

The Netherlands: A matter of fine print

In the case of Hewlett-Packard v Digital Revolution (Court of Appeal, The Hague, May 23 2017) a fair number of claims of the patent (EP 2170617) were held to be invalid on the basis of the interpretation of the means-plus-function claims. The appeal court endorsed the interpretation that was used by the EPO Board of Appeal in case T 0096/12.

Normally, functional features in claims need to be understood as "suitable for" the specified function. However, the EPO Board of Appeal held that especially when considering claims relating to computer programs and data processing, on a proper construction the claimed apparatus should be interpreted as adapted to carry out the specified function. The "adapted to" interpretation is further justified by the claims through the wording "configured to" used therein. When explained in this way, the prior art of Paulsen (EP 0956963) was found to be novelty destroying for the apparatus claims 1 to 6.

Further, this case includes an interesting decision on contributory infringement. Digital Revolution sold ink cartridges that were to be used in a printer from Hewlett-Packard. HP argued that these cartridges caused indirect infringement on the remaining valid method claim 7 because the use of this cartridge in an HP printer implies implementation of the claimed method. Digital Revolution counter-argued that by buying the printer the user would have got an implied licence for using the printer, including the software of the controller of the printer and the method of claim 7 incorporated therein (the cartridge itself did not infringe). The court found this a valid argument, because it was proven that the printer could only function with an ink cartridge that was provided with a memory function capable of communicating with the software of the printer (and thereby obligatory for performing the claimed method).

Bart van Wezenbeek



V.O.

Johan de Wittlaan 7

2517 JR The Hague

The Netherlands

Tel: +31 70 416 67 11

Fax: +31 70 416 67 99

info@vo.eu

www.vo.eu

more from across site and SHARED ros bottom lb

More from across our site

Simon Tønners explains why IP provides the chance to work with some of the most passionate, risk-taking, and emotionally invested clients
The co-leaders of the firm’s new SEP practice group say the team will combine litigation and prosecution expertise to guide clients through cross-border challenges
Boasting four former Spruson & Ferguson leaders and with offices in Hong Kong and Singapore, the IP firm aims to provide fast, practical advice to clients
Partners at three law firms explain why trade secrets cases are rising, and how litigation is giving clients a market advantage
Delegates at a conference unpicking the UK’s relationship with the UPC are hopeful of strengthened UK involvement – so should we all be
News of a litigation funder suing its co-founder and a law firm over trade secrets infringement, and a strategic hire by Womble Bond Dickinson were also among the top talking points
Managing IP’s parent company, LBG, will acquire The Lawyer, a leading news, intelligence, and data-driven insight provider for the legal industry, from Centaur Media
In major recent developments, a team of partners broke away from Taylor Wessing to form their own firm, while Kilburn & Strode made a strategic UPC hire
General Court backs Christian Archambeau in some of his challenges against his departure, but dismisses others
Morgan Lewis adds three partners with technical depth, reinforcing the firm’s strategy to bridge legal and tech expertise in patent litigation
Gift this article