In a recent decision of 16 June 2011 the German Bundesgerichtshof has cancelled a decision of the German Bundespatentgericht because the Bundespatentgericht had not sufficiently respected the (constitutional) right of one of the parties to a fair hear-ing (“Verletzung des rechtlichen Gehörs”). At the Bundespatentgericht the parties had discussed the validity of a German utility…
Italy as well as Spain against the decision to proceed with enhanced cooperation for the creation of the EU unitary patent
Italy has recently filed a complaint with the Court of Justice against Council’s decision of 10 March 2011 no. 167 authorising enhanced cooperation under Art. 20 TEU in the area of the creation of unitary patent protection. Spain had already filed one a few weeks before. As is known, negotiations between the Member States on…
Apple v. Samsung: Cross-border injunctions are back in The Hague, but only in provisional proceedings
In its 2006 decision in the matter called GAT/LuK the ECJ held that Article 22-4 of the Brussels Regulation – which provides for exclusive national jurisdiction regarding the validity of patents and other registered rights – applies to all proceedings relating to the validity of a patent, irrespective of whether the issue is raised by…
How useful are undertakings not to launch?
One of the possible courses of action open to patentees when they suspect that a competitor may be preparing the launch of a product that may infringe a patent in force is to send a warning letter. If the response is evasive, this would normally help the patentee to prove that there is an “imminent”…
Cephalon v. Mylan, High Court of England and Wales (Patents Court), 24 June 2011
The UK Court held that three of Cephalon’s patents relating to the drug modafinil, used to treat sleep disorders such as narcolepsy, were not infringed and were invalid for lack of inventive step. Click here for the full text of this case. A full summary of this case has been published on Kluwer IP Law.
Webseitenanzeige, Federal Court of Justice (Bundesgerichtshof), 24 February 2011
The Court of Appeal discusses and builds on its previous case law on patentability regarding the issue of whether the subject matter is considered a technical invention. The Court emphasizes that it is sufficient if only part of the patented teaching concerns a technical problem. However, as the next step it has to be determined…
Precipitation is no micronization, according to the Antwerp Court of Appeal
The Antwerp Court of Appeal dismissed the claims of the Spanish pharmaceutical company Almirall against Teva Pharma Belgium (Teva) relating to the generic ebastin. It confirmed the decision of the President of the Antwerp Commercial Court, although the Court of Appeal based its decision on other grounds. As discussed in a previous post, Almirall started…
Indirect requirement for urgency – follow up to inspection orders
by Stephan von Petersdorff-Campen In my post of 28 April 2011, I reported that the Düsseldorf Appellate Court (Oberlan-desgericht) does not require urgency for inspection orders, whereas urgency is re-quired for preliminary cease and desist orders. Urgency means that the patentee is compelled to apply for an interim injunction in due time (approx. 1 month)…
(Indirect) infringement, Biologics, Inventive step, Netherlands, Novelty, Opposition, Procedure, Revocation, Scope of protection, Validity
Danisco v. Novozymes – DC The Hague v. Opposition Division
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…
Supreme Court further clarifies the scope of reversal of the burden of proof in process patents
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…