The difference between “inventiveness” within the meaning of the Austrian Patent Act and “inventive step” within the meaning of the Austrian Utility Model Act is too small to distinguish between these two criteria. Thus, the inventive step pursuant to § 1(1) Utility Model Act requires the same qualitative criteria as inventiveness pursuant to § 1(1)…

The opponent relied on a document that was distributed in a meeting arranged by himself. The Board of Appeal held that in the present case, it did not share the view of the patentee that it was impossible for him to prove non-distribution and that therefore the burden of proof was with the opponent. In…

In view of the principles outlined in the recent decision T 777/08 it has to be expected that in the future the inventiveness of a novel polymorph form of a pharmaceutically active compound will be acknowledged only if the novel polymorph form is associated with an unexpected pharmaceutical activity, while improved physical and/or physicochemical properties would not be sufficient. Also, an inventive step might be acknowledged if an inventive activity is required to actually manufacture the polymorph.

To stay, or not to stay, that is the question. But not in the recent Danisco v. Novozymes case before the District Court of The Hague. On the face of the Court’s decision of 22 June 2011, the question whether to stay the national proceedings pending the outcome of opposition proceedings at the EPO on…

After years of not having handed down judgments in patent cases, in recent months the Supreme Court has handed down several interesting judgments which will hopefully give more guidance to lower level Courts. The last judgment in this recent saga, handed down on 18 July 2011, has confirmed the judgment of 19 December 2006 from…

The Federal Court of Justice (FCJ) in Germany has held in its recent “Dentalgerätesatz” decision that claim 1 of EP 892 625 is novel since it claimed a new functional adaptation of otherwise known elements to serve a certain purpose. In doing so, the FCJ reversed the first-instance decision of the Federal Patent Court.

The Borgarting Court of Appeal overturned the district court decision which revoked the patents in suit for lack of inventive step. The Court held that even if oxycodone had been known and used to treat pain as an alternative to morphine, the skilled person could not have predicted that a controlled release formulation with oxycodone…

The decision of the Board of Appeal of the European Patent Office which revokes a European patent due to lack of inventive step, is a supra-national legal instrument which can be the object of a complaint to the German Constitutional Court. Such complaints are only admissible if the protection of fundamental rights is no longer…

The Milan Court revoked a patent on the second medical use of a known drug because excerpts of the protocol of the clinical trials aimed at proving efficacy of the second use had been published before the relevant date in a scientific journal. The Court held that the outcome of the trials – which later…

In Denmark, a patentee may opt to apply for a utility model registration in addition to a patent, provided that the conditions for the grant of both rights are fulfilled. One of the strategic advantages of applying for both rights in Denmark is that the utility model registration is not subject to as thorough a…