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Netherlands: Limitation of claim changes in appeal

In Dutch court practice, an appeal is of a devolutive nature, that is in appeal the case is reconsidered as a whole. However, in a recent interlocutory decision (November 3 2015, High Point v KPN), the Appeal Court in The Hague found that the patentee was not entitled to further limit his claims.

During the first instance case, High Point had already filed three sets of limited claims on which the court had based its decision. With the statement of appeal, High Point attacked the decision of the court of first instance and only later, although clearly in advance of the oral hearing, did High Point file a new set of further limited claims.

High Point's arguments that these new claims would simplify and accelerate the procedure, that it would always be possible to decrease the demand of relief and/or that the EPC would give the patentee the right to limit the patent, were not convincing. The appeal court determined that such a late filing of a limited claim set would not fit with the practice that in appeal no new facts or arguments are filed after the statement of appeal that could start a new discussion between parties.

On the other hand, the argument from KPN that by introducing this new set of claims High Point has abandoned the claim sets that were on file, was not accepted by the court, either.

This (interlocutory) decision now has the consequence that the case will proceed on the basis of the three claim sets on which the court in first instance has decided.

Bart van Wezenbeek

V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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