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 2026

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

Cookies Settings

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

Julia Bishop is director of IP at Twilio in the US
Hellberg is an IP director at Essity in Sweden
Teemu Itälä is head of legal and compliance for technology standards at Nokia in Finland
Palińska is the business & IP law lead at CD Projekt Red in Poland
Schwitulla is the head of litigation management at Nokia in Germany
David Degen is senior IP counsel at Novartis, Switzerland
Demetrio Roberto Cavicchia is an IP director at Angelini Pharma in Italy
Almeida is the IP group leader at Bosch in Brazil
Amanda Luz is brand protection manager - global at Adidas in the US
Samantak Ghosh is vice president of IP at Avere Therapeutics in the US
Gift this article