To borrow a test

Nieuw bericht op ipgeek.blogspot.com: Simon Dack (De Brauw Blackstone Westbroek): “Is the patentee liable for wrongfully asserting his patent?” Commentaar bij Hoge Raad, 29 september 2006, LJN: AU6098. CFS Bakel B.V.  tegen Stork Titan B.V. (Eerder bericht + arrest hier)

“What the Supreme Court has done is to borrow a test from summary proceedings (where an injunction will be granted unless there is a serious, non-negligible chance that the patent will not survive opposition or invalidity proceedings) and use this as the basis for tortuous liability. The test would seem to be more easily satisfied than the earlier test (..) There, it was held that a patentee would behave reprehensibly if he exerted his patent rights whilst knowing or having a serious reason to suspect that the patent was invalid.

(…)Estimating the chances of success in a patent action is not an exact science. In cases which end up in Court, there generally will be (at least in the eyes of the alleged infringer) a reasonable chance that the patent will indeed be defeated (or that infringement will not be made out): otherwise the case would presumably settle. How the lower Courts will come to terms with the new gloss remains to be seen.”

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