Since July 2013 when the Danish Maritime & Commercial Court (MCC) took over as IPR specialty court in Denmark for PI cases also, the technical judges have taken part in the adjudication of PI patent cases also. Although the MCC has no legal basis to render judgement declaring patents in the course of PI proceedings, the fact that the bench is now made up of one legal judge and two technical judges in practice means that a well-documented invalidity defence may prove fruitful, whereas the invalidity defences in the past were almost invariably turned down by the bailiff’s who presided over patent PI cases due to the court’s lack of technical insight.
In a recent case (F&H A/S v. Bodum (Skandinavien) A/S), an invalidity defence was invoked based on several aspects, one of which it was argued ought in the concrete circumstances to weaken the validity presumption.
The patent-in-suit had been granted by the Danish Patent Office, but apparently no search report had been issued in connection with the prosecution, but instead only a description of the task undertaken by the PTO. From this description it would appear that no prior art had been identified. The defendant called as a witness an experienced EPA with a past as an EPO examiner. The expert testified that he had never before seen anything corresponding to a blank novelty search report.
In its finding, the MCC firstly confirmed the applicability of the presumption of validity and added that there must also be a presumption that the PTO prosecution has been carried out correctly. The MCC then went on to say that even though no prior art had been mentioned in the task description and even though no search report had been issued, there was no basis to assume that the PTO had not in fact searched for prior art and that, moreover, these factors in themselves could not give rise to any doubts as to the validity of the patent-in-suit on the basis of an (unproven) faulty prosecution.
Having found for the plaintiff on other relevant aspects as well, the MCC turned down the PI application.
In its decision, the MCC confirmed that even in unusual circumstances such as those reported in this case, a patent once granted shall be presumed valid in subsequent legal proceedings and that a defendant arguing invalidity has a heavy burden of proof to lift in order to succeed on an allegation of invalidity.


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