The Netherlands: The effects of lack of harmonisation

A number of court cases were recently and are still playing between Becton Dickinson (BD) and Braun on the validity and infringement of EP 2319556 related to a needle tip for hypodermic needles.

These cases show that a harmonised court system (such as the Unified Patent Court) is needed to come to uniform decisions all over Europe.

The patent was granted in 2013 and attracted an opposition by BD, which was rejected by the opposition division of the European Patent Office. The appeal against this decision from BD was also rejected and the patent was maintained as granted.

Already during the opposition and appeal, Braun started several court actions. In a first instance case in Germany, the Düsseldorf court decided that the patent was infringed by BD. An appeal against this decision is pending. In relation to these German proceedings, a revocation suit was filed with the court in Munich and in a preliminary opinion this court decided that the patent lacks novelty and inventive step. The same case was filed in Austria and there the first instance court did not provide an injunction. However, on appeal the Austrian Supreme Court decided that the patent was valid and infringed. Also in Belgium a case has started but no decision or preliminary opinion is available yet.

In the present (first instance) case in The Netherlands (Court The Hague, September 6 2017, ECLI:NL:RBDHA: 2017:9997) the court has decided that the patent is invalid. However, in contrast to the decision in Germany, the basis of the invalidity was formed by extension of subject matter and lack of inventive step.

The decision on basis of extended subject matter is remarkable, since the interpretation of the technical content of the claims deviates from the interpretation of the Board of Appeal of the EPO. According to the Dutch court the intended interpretation as now used for the claims was not directly and unambiguously derivable from the application as filed.

Although a number of court cases (including the present Dutch one) have not been finally decided and appeals are pending, the case again illustrates that national courts and the EPO Board can come to deviating decisions on the same European patent. The case thus again illustrates the need for a Unified Patent Court.

V.O.

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The Netherlands

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