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Netherlands: Dutch court wipes out toilet paper infringement

In a recent ruling (ECLI:NL: RBDHA:2017:15395), the Dutch Patent Court in The Hague had to decide whether or not Vialli contributorily infringed the Dutch part of SCA's European Patent 1 799 083 B1 relating to a toilet paper dispenser housing a roll of pre-cut toilet paper. The granted independent claim, which survived an opposition and appeal before the EPO, requires that the roll of toilet paper and an outlet nozzle of the dispenser are designed so that the interconnected paper sheets, for which specific dimensions were required, are unwound one at a time and emerge with less crumpling from the nozzle such that the toilet paper is consumed in "an optimum and pleasant manner".

One argument of Vialli was that the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Art. 83 EPC). However, the Dutch Patent Court found that, although it may not be clear where the exact dividing lines between "crumpled" and "less crumpled" and between "non-optimum and unpleasant manner" and "optimum and pleasant manner" lie, this does not mean that the skilled person cannot carry out the claimed invention. The Court concluded that the insufficiency of disclosure defence is in essence a plea for lack of clarity (Art. 84 EPC), which is not a ground for invalidity.

Besides, Vialli argued that her toilet paper dispensers, which are offered and sold without a roll of toilet paper, did not contributorily infringe the patent. According to Vialli, the dispenser does not form an element that distinguishes the invention from the prior art, but mainly the dimensions of the toilet paper, specified in the pre-characterising portion of the claim, form such distinguishing elements. However, the Court followed SCA's arguments that the features that distinguished the claim from the prior art included features relating to the dispenser, as the combination of the dispenser and the paper together facilitate that the sheets are unwound one at a time. Therefore, the Dutch Patent Court in The Hague held that Vialli contributorily infringed SCA's European Patent 1 799 083 B1.

It made no difference that Vialli's dispenser was also suitable for toilet paper that did not meet the paper size limitations of the claim, especially now Vialli's retailers offered her dispenser only in relation to toilet paper of the claimed dimensions. It does not seem to have helped that Vialli herself had actually exhibited her dispensers equipped with toilet dimensioned according to the independent claim at a trade-show in Amsterdam.

Jan Willem ten Dam

V.O.Carnegieplein 5, 2517 KJThe HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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