English  

District Court of The Hague, 18 October 2006, HA ZA 05/833. Technisches Büro Steur c.s. versus Zilka c.s.

The Zilka brothers are the owners of a European patent with regard to a “‘Device, , system and method for on-line explosive deslagging”. A third party filed notice of opposition at the EPO. Steur (claimant 1 in this instance) intervened in the opposition.

Steur c.s. claim, in short, (i) suspension of the proceedings pending a final decision from the EPO concerning the opposition, (ii) nullification of the Dutch part of the patent, and (iii) a declaratory judgment of non-infringement for the Netherlands and Germany.

Ex officio the court considers that following the appeal judgement by the European Court of Justice in the matter of Gat and LUK (C-4/03), rendered on 13 July 2006- therefore after closing arguments in this matter – that in view of article 22 sub 4 EEX-Regulation the court has no cross border jurisdiction. It has after all been established that in the present case a legally relevant appeal is made to the invalidity of the patent, in connection to which the German court is exclusively competent to render a judgement as far as Germany is concerned. This also goes according to the court for the declaratory judgment of non-infringement, as far as this concerns Germany.

Moreover, the Dutch side of things is not addressed with regard to content. The court sees, based on article 83 sub 4 ROW 1995, reason to suspend the proceedings pending the opposition procedure.

The Hague District Court, 13 September 2006, in the case of Ranbaxy Uk.Ltd / Ranbaxy Laboratories Ltd versus Warner-Lambert Company.

In the case on the merits Ranbaxy claims a court declaration that EP 633 is not infringed. In essence Ranbaxy argues that the patent only describes and protects the racemate of R,R and S,S and therefore does not protect the optically pure R,R or S,S. (…) So the court has to examine whether there is also a disclaimer in respect of the R,R- and S,S-enantiomers (the trans-enantiomers).

“3.27. (…) makes it highly unlikely that Warner-Lambert would have disclaimed the R,R-form. Might Warner-Lambert not already have had the knowledge at the time of the priority that the R,R-molecule would in fact be the only embodiment of the inventive thought having the intended therapeutic effect, the court supposes in any case that Warner-Lambert was familiar at that time with the fact that the R,R-forms of the substances developed by it would have the highest potential.

3.28. The (skilled) third party who studies the patent would also have the knowledge as summarized in 3.26. Already for this reason this average skilled person would not assume that there is a disclaimer for the R,R-form, nor read this in the patent, the description and the claims.

3.29. Finally in the view of the court one cannot read anywhere in the description, claims or prosecution history of EP 633 an implicit or explicit disclaimer.”

Read the entire judgment here.

IEFenglish

The Hague District Court, 13 September 2006, in the case of Ranbaxy Uk.Ltd /Ranbaxy Laboratories Ltd versus Warner-Lambert Company.

Contrary to the TBA (EPO), the district court rules that, for the Netherlands, “claims 1 to 3 of the patent should be considered invalid, because the invention incorporated in them is not new, at least these claims lack inventive step. The claim in the principal action will therefore be allowed on the understanding that the court will invalidate claims 1 to 3 of (Warner-Lambert’s) EP 281.”

Read the entire judgment here.

IEFenglish

District Court The Hague, 21 September 2006, KG ZA 06-694. Bettacare Limited versus H3 Products B.V. and Wedeka B.V.

Patent law.The Dutch cross border-practice had been comatose for a while, but has now reawoken, albeit possibly strongly downsized. It is in any case not dead (after GAT/LuK and Primus/Roche). In summary proceedings between Bettacare and Wedeka the court awarded a cross border ban on infringements for the Netherlands and Germany.

British Bettacare is the owner of a European patent concerning a child safety wicket. The Dutch company H3 Products B.V. markets child safety barriers produced by Wedeka B.V. of Stadskanaal (the Netherlands) that constitute according to Bettacare an infringement of the patent. In summary proceedings Bettacare claims a ban on infringement for all countries to which the patent was awarded. H3 Products and Wedeka dispute the validity of the patent by claming public prior use.IEFglish

The court considers the offered proof of prior use insufficient. Therefore, chances are that the patent will be nullified in proceedings on the merits. Patent breach in the Netherlands and Germany however is plausible according to the Judge. The Presiding Judge waives the statement made by H3 Products and Wedeka that GAT/LuK shows that in putting forth a validity defence under German law, the Dutch summary court would lose its jurisdiction. GAT/LuK according to the court does not show that the competent Dutch court (according to 2 EEX Regulation) would lose its jurisdiction because of the exclusive jurisdiction basis of article 22 sub 4 EEX Regulation. In summary proceedings no final judgement can be made of the validity of the patent; there can only be a provisional judgement by way of an estimate of the possible outcome of the validity defence. In case of jurisdiction based on article 2 EEX cross-border bans are therefore still possible in summary proceedings, even if a substantiated validity defence is put forth.

Apart from the jurisdiction vicissitudes this order is interesting because of the consideration made by the Judge concerning the alleged public prior use. See consideration 4.3 of the judgement.

Read the entire judgment here.

IEFenglish

District Court of Amsterdam, Interlocutory Proceedings of 24 August 2006, in the case numbered 345291 / KG 06-1112 AB of (the foundation) Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN) versus UPC Nederland B.V.

Copyright. A service provider may be obliged to provide the information sought to rights holders (or their representatives). For this purpose, the Court must first of all be satisfied that there have been (unlawful) infringement activities by the subscribers concerned and, secondly, that it is beyond reasonable doubt that those whose identifying information is made available are also actually those who have been guilty of the relevant activities. In such a case, it may be that the privacy interests of those concerned in retaining the secrecy of their information must yield to the interests of the rights holders in countering the illegal activities. Those criteria are applicable in this case.

Read the entire judgment here (translation provided by Stichting BREIN).

IEFenglish

District Court Amsterdam, 24 August 2006, Judgment in the interlocutory proceedings, in the case between Stichting Brein and UPC Nederland B.V.

"Contrary to the allegation by UPC, BREIN has an adequate - urgent - interest in the relief sought, namely its interest in bringing alleged infringement activities to an end as quickly as possible. It cannot be required to wait for the results of a proceeding on the merits that has been raised in the meantime."

"A service provider may, in certain circumstances, be obliged to provide rights holders (or their representatives) with the information asked for. For this, the Court must first of all be satisfied that there have been (unlawful) infringement activities by the subscribers concerned and, secondly, that it is beyond reasonable doubt that those whose identifying information is made available are also actually those who have been guilty of the relevant activities. In such a case, it may be that the privacy interests of those concerned in retaining the secrecy of their information must yield to the interests of the rights holders in countering the unlawful activities."

Read the entire judgment here (judgment made available by Bas Vissers, Stichting Brein).

IEFenglish

Supreme Court of the Netherlands, 16 June 2006. Judgment in the case between Kecofa B.V. and Lancôme Parfums Et Beauté et Cie S.N.C.,

“Upon examining this count it is a priori that it does not contest that a scent – always including hereinafter: a scent combination – may qualify for protection under copyright law. This starting-point is correct. The description laid down in Art. 10 Aw, next to the non-exhaustive listing of types of works, of what must be understood to be a ‘work’ in the sense of this Act, is put in general wording and does not prevent from comprising a scent in this. This implies that as to the question of whether a scent qualifies for protection under copyright law, or not, it is decisive whether this concerns a product which is open to human perception and whether it has an original character of its own and bears the personal stamp of the maker.

The notion of work in the Auteurswet does find its limits where the original character of its own is no more than what is required to achieve a technical effect, but seeing that in case of a perfume there is no purely technical effect, this last condition does not prevent the award of protection under copyright law to the scent of a perfume. The circumstances that the properties of the human olfactory sense put limits to the ability to distinguish scents and that the level to which one can distinguish different scents differs from one person to another, does not alter the above, nor does the circumstance that the specific nature of scents has the effect that not all provisions and restrictions in the Auteurswet can directly apply to this seen for instance the use of perfume which cannot be denied to the ordinary user and which by its nature necessarily implies spreading of the scent.

For copyright law to apply a scent cannot be identified either with the substance or substances which make the scent. This substance or substances operate as – not necessarily exclusive – incorporation of the work which is the scent, and they also contribute to that the scent should not be excluded from protection under copyright law for being too volatile or instable. In a perfume the scent therefore has to be distinguished from the mixture of substances which the perfume is composed of and which the gaseous olfactory substances which cannot be perceived with the olfactory organ are released from when exposed to the open air.”

Read the entire judgment here (translation made available by Charles Gielen, NautaDutilh).

IEFenglish

Teva vs. MSD: Court of The Hague, 17 May 2006, HA ZA 05-2019. Teva Pharmaceuticals Europe B.V. c.s. versus MSD Overseas Manufacturing Co. (Ireland)

"It is stated a priori that the court, when answering - under Dutch patent law - the question whether a disclaimer such as the one at issue is permissible, seeks alignment with the case law of the Enlarged Board of  appeal of the EPO, as developed in G1/03 (OJ EPO 2004, 413) and G2/03 (OJ EPO 2004, 448) of 8 April 2004. In said judgments the Enlarged Board of Appeal of the EPO held that a disclaimer without basis in the original documents was only allowed in three cases: (i) as an exclusion of the fictitious state of the art, (ii) as an exclusion of an accidental anticipation and (iii) by exclusions of patenting for non-technical reasons. (...)

The above leads the court to the conclusion that Blum is not so unrelated and remote that the average skilled person never took this document into consideration when searching for other biphosphonates, which could be used in the treatment of bone disorders. This means there is no accidental anticipation and the dislaimer forms unauthorised added matter added matter. This disclaimer cannot, e.g. by means of partial revocation, be removed from the claim because this would result in abroadening of the scope of protection. Consequently, this ground for invalidity of NL '562 is effective, whereby as a result of the provisions of Article 15, Paragraph 1.c Regulation 1786/92 the SPC based on said invalid, but expired, patent is also invalid, so that the claim in the main action can be awarded. The other grounds for invalidity as presented by Teva need not be dealt with."

Read the entire judgment here.

IEFenglish

The Hague District Court, HA ZA 05-2016, 3 May 2006, Antiotech Pharmaceuticals Inc. and Boston Scientific Corporation versus Sahajanand Medical Technologies PVT. Ltd.

Patent law. Angiotech and Boston Scientific are of the opinion that the Infinnium stent by Sahajanand falls under the protection of the patent, and claim a ban on infringement with ancillary claims, amongst others a to be imposed moratorium of three years against the use of in the Netherlands illegally gained research data for the purpose of a request for a CE-authorisation.

4.25 (…) However, for there to be an insufficient level of inventiveness the average skilled person should be induced according to settled case-law to use taxol. This means that with the expectance that it (might) prevent restenosis he would have chosen taxol as a result of the pointers in the state of the art. However, one should take into account in this that the average skilled person may be expected to carry out some (routine) research work to optimize known art, and so a selection from a rather limited group of medicines – assuming that the testing of these medicines as such do not involve any special problems for the skilled person or that there is overcoming a prejudice – may produce insufficient level of inventiveness, even if such selection produces an optimum result.

4.45. Sahajanand’s Infinnium stent falls under the scope of protection of claims 6 and 12 of the patent, whereas the invalidity defenses challenging this do not hold. Sahajanand’s import and supply for the sake of the SIMPLE 2 trial constituted infringement of the patent rights of Angiotech et al. Furthermore there is a threat of infringement, and so the court declaration and the injunction are allowable. Which purpose the moratorium of three years also claimed might serve is not immediately clear, but assuming that this should become effective after expiry of the patent protection the court considers that it has not become sufficiently clear in the present proceedings that the results of any infringing act in this country (more specifically of the SIMPLE 2 trial) were used for the grant of the CE-marking, let alone that is has become sufficiently clear that without these results no CE-marking would have been granted. On the latter point it should be borne in mind that is has been established that for only 16 patients of the total of 385 (282 in SIMPLE 1 and 103 in SIMPLE 2) there were infringing acts here, whereas it   has not become clear that and why the results concerning the other 369 patients – if used – were not sufficient to obtain a CE-marking. Nor can it be understood which purpose an injunction to use the data of the SIMPLE 2 trial in advertising or in sale might serve, seeing that in the Netherlands the stents are no longer allowed to be sold or offered as a result of the general infringement injunction to be allowed in 1 and the injunction concerning such data would only regard the Netherlands as a result of the jurisdiction judgment.   

Read the entire judgment here.

IEFenglish

Amsterdam, Court of Appeal, 9 march 2006, Merck Sharp and Dohme vs Pharmachemie B.V.

Advertising. Pharmachemie, a generic producer, obtained registrations from the Dutch Medicines Evaluation Board (MEB) for the generic equivalent of the brand product Fosamax made by MSD. As was earlier reported (see here), MSD wrote to pharmacies and wholesalers pointing out disadvantages of the recently registered versions of Fosamax. At the time these letters were sent Pharmachemie had not yet marketed their products. This happened shortly after MSD had written its letters.

According to the ruling of the 23rd of  September 2005 the primary relief judge ruled the MSD letters to be comparative advertising and to be misleading on several points. MSD was ordered to rectify the misleading statements. MSD appealed the ruling, but lost. The Court of Appeal affirmed the ruling made by the primary relief judge.

In the misleading letters MSD had not named any of the generic products or indeed Pharmachemie itself but it had referred to several generic versions of Fosamax. Pharmachemie is a major player in the market for generic medication and a competitor of MSD's. As Pharmachemie was just marketing its generic products the letters would have drawn attention implicitly comparing the products. The Court of Appeal ruled that it is likely that the recipients of the letters would know which generic products were meant even though these products had not yet been marketed.

The Court of Appeal also affirmed the primary relief judge's ruling that the writings were incomplete and as such misleading. The fact that MSD, as the publisher of the comparing advertisement, wasn’t apprised of all the relevant information at the time of writing of the letters is MSD's risk and does not change their culpability. It is the publisher’s duty to ensure all information is relevant and accurate and that it does not mislead or inadequately represent the competitor’s product. By stating that 'research had shown' it was all the more unclear that the writing did not constitute an opinion of MSD.

Reports supplied by MSD supporting their statements were insufficiently convincing as the MEB had already considered the aspects and characteristics of Pharmachemie’s products.

The Court of Appeal dismissed statements concerning packaging of the generic products as subjective, non-confirmable statements as MSD had not factually substantiated these statements.

Even though Pharmachemie's registration for it's 70 mg generic product had been cancelled on 30th September 2005, Pharmachemie still has an interest. Not only does Pharmachemie hold a registration for its 10 mg product it has also re-registered and marketed the 70 mg version. Thus Pharmachemie's interests are still valid and do still benefit from the primary relief judge's ruling.

 Read the judgement here.

IEFenglish