Under the doctrine of equivalents a patentee may raise a claim of infringement even though the allegedly infringing product does not literally fulfil all features of the claim. The purpose of the doctrine is to prevent an infringer from stealing the benefit of an invention by changing minor or insubstantial details while retaining the same functionality. Internationally, the criteria for determining equivalents vary. For example, German courts apply a three-step test known as Schneidmesser’s questions. In the UK, the equivalence doctrine was most recently discussed in Eli Lilly v Actavis UK in July 2017. In the US, the function-way-result test is used.
The German Bundesgerichtshof has issued a decision (X ZR 41/13) called “Quetiapin” which discusses a fundamental question of the Patent Law, i.e. the definition of the “technical problem” underlying an invention. The claim of the European Patent under discussion concerned a sustained release formulation. The Patent Court had nullified the (German part of the) patent…
On February 13, 2015 the Eastern High Court of Denmark issued a decision in an appeal in interlocutory proceedings regarding an application for an interim injunction against the marketing and sale of generic medicines (birth-control pills) containing, inter alia, drospirenone. Bayer is the proprietor of two patents regarding a method for producing drospirenone. On June…
The doctrine of equivalence has seen some kind of renaissance in German case law recently. In short words, there are three questions to be asked to decide for equivalent infringement if there is no literal infringement. The first one being the question about the effect of the different solution. Do the means used to solve…
Before diving into this year’s Oktoberfest with the Munich IP community, colleague contributor Thorsten Bausch summarized the German Federal Court of Justice’s case law of Summer 2014. As the days of raising beer mugs and polka dancing come to an end in Munich, so does the Dutch Summer (finally). Time for an overview of what…
To the extent that summer 2014 existed at all in central Europe, experts agree that it is now definitely over. There is some controversy whether we ever had summer in Germany this year, but at least it was proven that life without air conditioning is possible. Meanwhile, the Munich IP Community is busily preparing for…
The Stockholm District Court found that the product did not fall under the wording of the patent claim or the doctrine of equivalence. During the application procedure before EPO, the patent holder had intentionally limited the scope of protection in order to avoid prior art. The features added to the patent claim during the application…
Many practitioners in Germany thought the doctrine of equivalence to be rather at its end following two Supreme Court (BGH)-decisions in 2011 (“Okklusionsvorrichtung” and “Dyglycidverbindung”). Now, the renowned Higher Regional Court Duesseldorf has – in my eyes, correctly – made clear that the old dog is still alive. Background According to standard practice of the…
In 1984 Albert Hedegaard submitted a national patent application to the Danish Patent Office concerning an air-assisted device for spraying crops with pesticides. Hardi International A/S filed an opposition against the patent application with the Danish Patent Office. When finally granted in 1996, the patent had been substantially limited and the claims had been amended…
In its decision “Fahrradkurbeleinheit” (“bike crank assembly”) the Higher Regional Court of Düsseldorf has lifted an injunction by the Regional Court of Düsseldorf on appeal (OLG Düsseldorf, I-2 U 78/12, 20 June 2013). Contrary to the first instance the court did not find for patent infringement. Questions of literal and equivalent infringement have been discussed…
Ex parte measures are rather difficult to obtain in patent matters in Switzerland (except from evidence-protection measures). Nevertheless, the Swiss Federal Supreme Court had the opportunity to opine on this subject in a recent decision dated 21 August 2013. Although this case will become better known because it was the first time that the first…
