The Netherlands: The effects of lack of harmonisation
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

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

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.

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 ros bottom lb

More from across our site

A 36-member team from Zhong Lun Law Firm, including six partners, will join the newly formed East IP Group
The Delhi High Court sided with Ericsson against Indian smartphone maker Lava, bringing the companies' nine-year dispute to a close
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Tennessee has passed the ELVIS Act, a law that fights against AI models that mimic the voice and likeness of music artists
Rob Stien, chief communications and public policy officer at InterDigital, says the EU has forgotten innovators while trying to solve an issue that doesn’t exist
As Australia’s Qantm IP leans towards being acquired by a private equity company, sources discuss what it could mean for IP firms
Law firms that are conscious of their role in society are more likely to win work, according to a survey of over 23,000 in-house professionals
Nghiem Xuan Bac Pham, managing partner of Vision & Associates, discusses opportunities created by the US-China rift as well as profitability issues facing IP practices
Douglas Leite and two of his colleagues were intrigued by Bhering Advogados’s mission to grow its patent litigation practice
Each week Managing IP speaks to a different IP practitioner about their life and career
Gift this article