When are two patents different enough?
Case law from the contracting states to the EPC
1. Clarity of claims
Federal Court of Justice, October 27, 2015 (X ZR11 / 13) - Joint tape
Keyword: patent claims - clarity check after patent grant
The patent in suit (EP 0 792 973) in the version defended in this process concerned the use of a tape as a cold-processable joint tape in road construction.
The plaintiff asserted that the term "separately" used in feature 4 of the patent claim restricted in the patent nullity proceedings should be checked for clarity. This was denied by the BGH.
The Federal Court of Justice ruled that in the event of self-restraint by the patent proprietor in nullity proceedings, it must be examined whether the intended self-restraint is inadmissible, for example because the subject matter so defined goes beyond the original disclosure or extends the scope of protection of the patent. An examination criterion for the admissibility of features and terms included in the patent claim can also be whether the claim is formulated sufficiently clearly and clearly through their inclusion (see BGH X ZR 88/09 - Electron beam therapy system). This follows from Art. 84, second sentence, EPC; For national law, this requirement arises from Section 34 (3) No. 3 Patent Act in conjunction with Section 9 (6) Patent Ordinance.
However, neither the European Patent Convention nor the Patent Act provide for a review of already granted claims for clarity. With the granted patent or the patent amended in opposition proceedings, the patent proprietor has obtained a legal position which can only be partially or fully revoked in the cases provided for by law, i.e. if there is a reason for opposition or invalidity. The European Patent Convention, like national law, conclusively regulates the grounds for opposition or invalidity, which do not include lack of clarity (Art. 100, 138 EPC; Sections 21, 22 PatG). It follows that an examination of the clarity is in any case not admissible if the alleged lack of clarity was already contained in the granted claims (see EPO Enlarged Board of Appeal G 3/14).
According to these principles, in the event of a dispute, it was not permitted to examine the patent claims that were changed in use claims. The disputed word "separate" was not included in the patent claim that was redesigned as a use claim. It was already part of the material claim in the version changed in the opposition proceedings, which, with the exception of the design as a use claim, remained unchanged.
The guiding principle formulated by the BGH reads: In the event of self-restraint by the patent owner in the nullity proceedings, an examination of the clarity of the limited patent claim is not permitted if the alleged ambiguity was already contained in the granted claims.
2. Interpretation of claims and scope of protection
Higher Regional Court of Vienna, March 15, 2016 (34R 146/15p)
Keyword: patent claims - interpretation of claims - scope of protection - molded stone objection
According to Section 163 (1) PatG, a request for a declaration that an object or a process is not covered by the patent can be submitted to the patent office against the patent owner. Section 163 (1) PatG is lex specialis to an action for declaratory judgment in court. In the case of pending infringement proceedings before a court, an application for a declaration is inadmissible.
With reference to the protocol on the interpretation of Art. 69 EPC, the Higher Regional Court (OLG) Vienna stated that the decisive factor in determining the content of the patent claim was how the wording of the granted patent explained by the description and drawings should be interpreted. Whether the grant files speak in favor of a narrower scope is not decisive (Supreme Court, 17 Ob 35 / 09k; 4 Ob 214 / 12t).
In the procedure for an application for a declaration, Section 163 (5) of the Patent Act obliges the patent office to also take into account the state of the art proven by the parties when assessing the scope of protection of the patent. Accordingly, the scope of protection is limited by the state of the art at the time of filing or priority, because a patent claim cannot include what was already part of the state of the art before the filing date (Supreme Patent and Trademark Senate, Op 3/02; Op 2/13; Supreme Court, 4 Ob 9 / 06m).
This priority of the free state of the art (so-called "molded stone objection"; see German Federal Court of Justice, X ZR 28/85 - Shaped stone) means that when determining the scope of protection, the objection is permissible that the contested embodiment is not a patentable invention with regard to the state of the art on the filing or priority date. In infringement proceedings under German law, the challenged embodiment may not, however, implement the features of the patent in suit identically, i.e. literally, with this objection. In this case, denying patent infringement would implicitly call the grant of a patent into question. The infringement court is not allowed to do this, as it is bound by the granting of the patent. In order to defend against a literally implemented patent in suit, the lack of legal validity must be asserted in separate nullity proceedings. In this respect, the molded stone objection is only relevant in the event of a patent infringement with equivalent means (German Federal Court of Justice, X ZR 74/14).
According to the Vienna Higher Regional Court, this differentiation is not necessary in the determination procedure according to Section 163 PatG, because here the question of the (partial) invalidity of the subject of the dispute - and thus at least indirectly also the legality of the grant - can be raised. The state of the art is to be taken into account without any differentiation between word synonymous and equivalence and the formally valid patent grant is not in itself decisive. In this first instance before the patent office as the issuing authority, the raising of the molded stone objection can lead to the fact that the patent is to be regarded as de facto null and void. It follows that, unlike in Germany, the granting of a patent is not binding.
As a result, the Higher Regional Court of Vienna confirmed the decision of the patent office that the applicant's patent did not come under the opponent's patent (patent in suit EP 1 989 066), since the former was obvious at the time of priority of the patent in suit due to the state of the art.
Court of Cassation, March 12, 2015 (C.14.0098.F) - Saint-Gobain versus Knauf
Keyword: claims - interpretation of claims - equivalents
The Court of Cassation found that patents, in their capacity as exclusive rights, run counter to the principle of entrepreneurial freedom and must therefore be interpreted strictly. When determining the scope of protection, however, all elements must be taken into account that are equivalents of the elements named in the claims.
Editor's note: The Court of Cassation upheld the judgment of the Court of Appeal Liège of 19 September 2013 (2011 / RG / 1503) Saint-Gobain v Knauf - a summary of this judgment can be found in supplementary publication 2 to OJ EPO 2015, "Jurisprudence from the contracting states of the EPC "(2011-2014), p. 155 (European patent 0 399 320).
Federal Court of Justice, October 14, 2014 (X ZR 35/11) - Access rights
Keyword: patent claims - interpretation of claims - exemplary embodiments not covered by interpretation
The invention related to a method for granting access rights to a telecommunications channel (EP 1 186 189).
The BGH found that the patent court came to an interpretation of the patent claim, which meant that none of the exemplary embodiments described in the patent specification were covered by the subject matter of the patent.
The BGH ruled that such an interpretation can only be considered if other possible interpretations, which lead to at least some of the exemplary embodiments, are ruled out or if there are sufficiently clear indications from the patent claim that something is actually being claimed that so largely deviates from the description.
In the present case, these conditions were not met. Rather, the patent claim made it sufficiently clear that the features provided therein are intended to cover both exemplary embodiments described in the description.
Federal Court of Justice, May 12, 2015 (X ZR 43/13) - Rotor elements
Keyword: patent claims - interpretation of claims
The plaintiffs asserted that the subject-matter of the patent in suit was inadmissibly extended and not patentable.
The BGH ruled that the patent claim in question must first be interpreted using the description and the drawings before the court can turn to the question of whether the subject-matter of the patent in suit, which emerges as the result of the interpretation, in the original documents as the one applied for Invention or as related thereto is disclosed. The examination of an inadmissible extension must therefore be preceded by the determination of the meaning of the patent claim to be examined for this.
According to the established case law of the Federal Court of Justice, the interpretation of the patent claim is always required and must not be omitted even if the wording of the claim seems unambiguous. Because the description of the patent can define terms independently and to that extent represent a "patent-specific lexicon" (BGH X ZR 85/96 - Clamping screw). Also the principle that in the event of contradictions between the claim and the description, the claim takes precedence because it and not the description defines and thus also limits the protected object (BGH X ZR 16/09 - Occlusion device), does not exclude the possibility that the description and the drawings give rise to an understanding of the claim that differs from that conveyed by the mere wording of the claim.
The function of the description is to explain the protected invention. In case of doubt, an understanding of the description and the claim is required that does not contradict the two parts of the patent specification, but rather understands them as related parts of the technical teaching made available to the skilled person with the patent as a meaningful whole. Only if and to the extent that this is not possible is it justified to conclude that parts of the description may not be used for interpretation. An interpretation of the patent claim that would result in none of the exemplary embodiments described in the patent specification being covered by the subject matter of the patent can therefore only be considered if other possible interpretations that lead to at least some of the exemplary embodiments are ruled out or if sufficiently clear indications can be derived from the patent claim that something is actually claimed that deviates so largely from the description (BGH X ZR 35/11 - Access rights). When determining the meaning of a patent claim, even the wording that is unambiguous in and of itself is not decisive if the interpretation of the claim using the description and the further patent claims shows that two terms used in the patent claim are to be interchanged.
Federal Court of Justice, June 2, 2015 (X ZR 103/13) - Cross linkage
Keyword: patent claims - interpretation of claims - impermissible extension
The patent in suit (EP 1 366 968) related to a collapsible carriage for children or dolls with a carriage frame.
According to the case law of the BGH, descriptions and drawings that explain and illustrate the teaching of the patent claim to a person skilled in the art should not only be used to determine the scope of protection (Art. 69 (1) EPC, Section 14 Patent Act), but also for the interpretation of the patent claim regardless of whether this interpretation is the basis of the infringement examination, the examination of the subject matter of the patent claim for its patentability or the examination of another ground for invalidity (BGH X ZR 117/11 - Polymer foam I.; BGH X ZR 43/13 - Rotor elements).
The patent specification is to be read in a meaningful context and, in case of doubt, the patent claim is to be understood in such a way that there are no contradictions to the statements in the description and the images in the drawings (BGH X ZR 16/09 - Occlusion device). With regard to the terms used there, patents represent, as it were, their own lexicon. If these deviate from general linguistic usage, ultimately only the term content resulting from the patent specification is authoritative (BGH X ZR 85/96 - Clamping screw). Only if and to the extent that the teaching of the patent claim cannot be reconciled with the description and the drawings and an irresolvable contradiction remains, those elements of the description that were not reflected in the patent claim may not be used to determine the subject matter of the patent ( BGH X ZR 16/09 - Occlusion device). Accordingly, an interpretation of the patent claim that would result in none of the exemplary embodiments described in the patent specification being covered by the subject matter of the patent only come into consideration if other possible interpretations that lead to at least some of the exemplary embodiments are excluded or if sufficiently clear indications can be derived from the patent claim that something is actually claimed that deviates so largely from the description (BGH X ZR 35/11 - Access rights). If several exemplary embodiments are presented in the description as being according to the invention, the terms used in the patent claim are to be understood in such a way that all exemplary embodiments can be used to fill them in.
The BGH also found that infringement courts have to interpret the patent in suit independently; In doing so, they are neither legally nor actually bound by the interpretation by the Federal Court of Justice in a patent nullity procedure relating to the patent in suit.
Federal Court of Justice, June 9, 2015 (X ZR 101/13) - Polymer foam II
Keyword: patent claims - interpretation of claims - impermissible extension
The patent in suit related to articles containing polymer foam and a process for their production.
The BGH confirmed its case law, according to which the examination of an inadmissible extension must be preceded by an interpretation of the patent claim to be examined, in which its meaning and in particular the contribution that a disputed feature makes to the performance result of the invention must be determined. The Federal Patent Court has to determine the subject matter of the patent in suit in the light of the overall disclosure of the patent specification before turning to the question of whether this subject matter is inadmissibly expanded compared to the original documents. A granted patent claim has the character of a legal norm (BGH X ZB 13/06 - Momentary pole II), and it is a legal question what results from a patent claim as a protected object (st.rspr. since BGH X ZR 156/97 - Dozer blade). The binding answer to legal questions is the task of the court seised, from which it is not released even if the legal norm is unclear or its interpretation is difficult. Determination of the subject matter of the invention cannot be dispensed with on the grounds that a feature is indeterminate and (therefore) unsuitable for delimiting it from the state of the art (following BGH X ZR 95/05 - Road construction machine).
The meaning of a feature is to be determined with a view to what should be achieved with the feature from the point of view of the person skilled in the art with regard to the invention. The general as well as the customary technical usage can provide clues for the understanding of the skilled person. In view of the fact that terms in a patent description can be used in a way that deviates from the general usage, the content of the term resulting from the overall context of the patent specification is ultimately decisive. The more the content of the patent specification suggests a different understanding, the less room there is for recourse to general linguistic usage (BGH X ZR 85/96 - Clamping screw).
Federal Court of Justice, October 13, 2015 (X ZR 74/14) - Air cap system
Keyword: patent claims - interpretation of claims
The plaintiff asserted claims for infringement of European patent 0 596 939, which concerned an air cap system for a paint spray gun.
When interpreting the patent claim (in particular the feature "blocking the air flow"), the appellate court assumed a general sense of the word, for the determination of which it relied on the linguistic meaning. The Federal Court of Justice did not object to this in the approach. On the basis of this, the appellate court had essentially only dealt with the question of whether the patent specification provided evidence of a different understanding.According to the Federal Court of Justice, this procedure was in contradiction to the following principles.
According to the constant jurisprudence of the BGH, it is not the linguistic or logical-scientific meaning of the terms used in the patent claim that is decisive for the interpretation of a patent, but their technical meaning, which takes into account the task and solution as objectively resulting from the patent is determined (see only BGH X ZR 76/68 - Stretching roller; BGH X ZR 85/96 - Clamping screw). The meaning of a patent claim in its entirety and the contribution that the individual features contribute to the performance result of the patented invention are decisive here (see only BGH X ZR 72/05 - Drawing machine pulling unit I). From the function of the individual features in the context of the patent claim, it can be deduced which technical problem these features actually solve for themselves and in their entirety (see only BGH X ZR 113/11 - Pallet container III).
Both the term "block" and the terms "shut off", "lock off" and "close", which are cited as synonyms by the court of appeal, may often suggest in connection with an air flow that any possibility of passage should be prevented. The court of appeal drew the implicit conclusion for the teaching of the patent in suit that it was not enough if the air flow was only partially prevented. In the opinion of the Federal Court of Justice, it neglected the examination of whether this interpretation result is compatible with the relevant technical meaning of the feature in the context of the solution of the task at hand. The appeals court should have dealt with the question of whether the feature at issue requires full blocking or whether partial blocking may be sufficient. In the opinion of the Federal Court of Justice, the latter is the case, since it can be inferred from the description that a partial blocking of the air flow is sufficient, provided that the effect aimed for by the invention is achieved.
The guiding principle formulated by the BGH reads: If two measures that differ only gradually (here: blocking and throttling of an air flow) are named without further differentiation as the starting point for a difficulty occurring in the prior art, the fact that in the patent claim only the more effective measure (here: blocking) is mentioned, it cannot be inferred without further ado that the less effective measure is not sufficient to implement the protected teaching.
Federal Court of Justice, May 10, 2016 (X ZR 114/13) - Heat exchanger
Keyword: patent claims - interpretation of claims - use of a sub-claim to interpret the main claim
The patent in suit (DE 196 54 370) relates to a heating system with air ducts for open vehicles (convertibles) to circulate warm air around the head. Claim 1 provides a separate heater with a separate heat exchanger. Dependent claim 3 provides for electrical heating wires in at least some of the air ducts.
According to the Federal Court of Justice, the appellate court, for the understanding of the term "heat exchanger", largely relied on the ratio of claim 1 to subclaim 3 and the fact that in the latter subclaim an element called a heating wire is provided as an additional means for heating the air flow. The court of appeal drew the conclusion that an aggregate cannot be classified as a heat exchanger if the heat is generated like a heating wire. The BGH does not follow this approach.
The determination of the meaning of a sub-claim can in principle contribute to the correct interpretation of the main claim. Because subclaims further develop the solution under protection in the main claim and can therefore - indirectly - allow knowledge about its technical teaching. It should be noted, however, that they regularly do not restrict the subject matter of the main claim, but rather, unlike exemplary embodiments (BGH X ZR 255/01 - Separation device on the bottom), only to show possible ways of designing it - possibly with an additional advantage.
The extent to which reliable conclusions can be drawn from the subject matter of a sub-claim for understanding the main claim and the terms used in it also depends on the circumstances of the individual case, in particular on what the supplement to the technical teaching of the main claim proposed by the sub-claim consists of and how it develops the subject matter of the main claim. If a feature is thereby supplemented by an aspect that further develops this feature in the interest of functional optimization, this can under certain circumstances enable reliable conclusions to be drawn about the understanding to be attached to the relevant feature within the scope of the teaching of the patent in suit. It is different, however, if a further element is added to the features of the main claim.
In the event of a dispute, it is the latter variant, since another autonomous heating means (heating wires) is added to support the effect of the heating system. From this - unlike the court of appeal - no conclusions can be drawn about the mode of operation of the primarily intended heating medium, the heat exchanger.
Barcelona Court of Appeal (15th Senate), January 7, 2016 (3/2016) - Gamesa Corporación Tecnológica et al v Aloys Wobben
Keyword: claims - interpretation of claims - scope of protection
The European patent (ES) 0 847 496 held by Mr. Wobben related to a method for operating a wind turbine. The company Gamesa had submitted before the court of first instance No. 6 that the patent was invalid because of, among other things, lack of novelty and lack of inventive step. In the meantime, Mr Wobben had sued Gamesa (before the first instance court no. 8 in Barcelona) for patent infringement because they had installed high wind turbines in Spain, which allegedly were based on the technology from the patent. Both proceedings were joined by Court of First Instance No. 6. The court determined the validity of the patent and its infringement by individual Gamesa turbines.
In the appeal proceedings before the Barcelona Court of Appeal (15th Senate), the central point of contention was the question of whether the same criterion was used to determine the scope of protection when examining the validity of the patent and examining the question of infringement. Gamesa was of the opinion that the court of first instance did not apply the same criterion. The technical effect of the relevant feature is the only element that gives the patent novelty and inventive step, but has not been taken into account with regard to the exclusion of patent infringement.
According to the appellate court, the interpretation of the claims and the determination of their scope of protection are essential both for the examination of the validity and for the determination of a possible patent infringement. The scope of protection is defined by the content of the claims, which is to be interpreted taking into account the description and the drawings (Art. 26 and 60.1 Spanish Patent Act and Art. 69 EPC). As was clear from the description of the patent, the essential and distinguishing feature of the patented process is that the wind turbine does not switch off at extreme wind speeds, but continues to run at reduced power and rotor operating speed, while conventional turbines suddenly switch off when the wind blows a certain one Speed ("maximum shutdown speed") reached. The appeals court found that the scope of protection of the patent extends only to those wind turbines that continue to run without interruption and do not shut down, thereby solving the problem of on / off hysteresis. So it came to the conclusion that the tall wind turbines installed by Gamesa do not fall under the scope of protection of the patent because they switch off at high (maximum) wind speeds. The appellate court thus overturned the first instance judgment and decided that there was no patent infringement.
For parallel proceedings to this European patent in other countries, see Chapter H.3. Method for operating a wind turbine.
Court of First Instance, Paris, May 26, 2016 (14/05090) - Mrs. W. and France Brevets against Nintendo
Keyword: patent claims - interpretation of claims - file history estoppel
The application for the French patent 0 608 323 was filed on September 22, 2006, on March 6, 2009 the patent for it was granted. Its subject is a "dynamic positioning device for recognizing the position of a balanced biped". The invention is intended, inter alia, for the user. make it possible to concentrate on how one's body weight is distributed on the soles of the feet while standing (on a flat, movable surface) and to perceive any imbalance.
Ms. W. was of the opinion that the Wii Balance Board and the associated software Wii Fit from Nintendo (N) - both elements of the Wii console - reproduced the features of her French patent 0 608 323 and sued N for patent infringement. N filed a counterclaim for the invalidity of the patent claims at issue.
In Ms. W.'s opinion, the specialist is a masseur / physiotherapist who (due to his school and university education) also has basic knowledge of mechanics and electronics. Like N, the court took the view that the specialist was a team made up of a specialist in posturology and an engineer specializing in measuring instruments and, in particular, personal scales, who also had knowledge in the field of signal processing.
As far as the interpretation of the patent is concerned, the parties define two characteristics of the patent differently. The court found that the answers given by the representative of Ms. W. in the context of the examination of the European patent 2 067 009 relating to the same invention must be taken into account as indications in the interpretation of the claims, especially with regard to the description. They give the court information about the importance the inventor attaches to certain terms and clarify or limit them in certain cases. The answers are therefore necessarily a good indicator of what the inventor wanted to protect and what really represents her invention; they are an important indication of the scope of the invention and its design.
In application of the prohibition of contradicting behavior to the detriment of another, the court ruled that Ms. W. cannot represent the exact opposite of her position before the EPO before the court.
In conclusion, the court declared the disputed claims null and void (anticipation with a reliable date - user manual and diploma thesis), particularly after the novelty check with regard to the Multitest device.
GB United Kingdom
Court of Appeal, June 24, 2015 - Smith & Nephew Plc v ConvaTech Technologies Inc  EWCA Civ 607
Keyword: patent claims - interpretation of claims - number ranges
According to Kitchin LJ in the decision on European Patent (UK) 1 343 510, the general approach to interpreting a patent claim is in accordance with Kirin Amgen Inc v Hoechst Marion Roussel Ltd  UKHL 46 and Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd  EWCA Civ 1062 also apply to a claim that contains a range of numbers. The crucial question is what the author's intended meaning the skilled person would read from the words or numbers in the claim. It is common practice among scientists to consciously state numerical values with a certain degree of accuracy, and this degree of accuracy then tells the reader how the author wanted a certain number to be understood.
According to Kitchin LJ, some relevant aspects for claims of this kind emerge from the case law of the English courts and the EPO Boards of Appeal. First, both patent infringement and validity issues must be based on exactly the same scope of protection of the claim. Second, it is not justified to use rounding or other approximations to alter the prior art disclosure or alleged infringement. Third, the meaning and scope of a range of numbers in a claim must be determined in the light of general technical knowledge and the patent specification as a whole. Fourth, those skilled in the art may recognize, in the light of the general knowledge and teaching of the patent specification, that the patentee intentionally expressed the numbers in the claim with a certain but limited degree of precision in order for the claim to include all values in the claimed range when used with given the same level of accuracy. Fifth, whether or not this is the case depends on the overall circumstances, including the number of decimal places or significant places with which the numbers in the claim were apparently expressed.
Editor's note: Napp Pharmaceutical Holdings Ltd v Dr Reddy's Laboratories UK Ltd & Sandoz Ltd  EWHC 1517 (Pat) and  EWCA Civ 1053 also dealt with the interpretation of number ranges.
Supreme Court, February 5, 2016 - Bayer versus Sandoz
Keyword: patent claims - interpretation of claims - scope of protection - equivalents
These proceedings for interim legal protection concerned two European patents which were granted to Bayer for drospirenone (EP 0 918 791 and EP 1 149 840); both claimed a priority dated August 12, 1996.
Drospirenone is one of the active ingredients in two oral contraceptives that Bayer markets in the Netherlands under the brand names Yasmin and Yaz. Sandoz sells a generic of Yasmin; the drospirenone contained therein is manufactured by Industriale Chimica, an organic compound known as TEMPO being used here as a catalyst for the oxidation instead of the metal salt ruthenium claimed in EP 0 918 791. This adapted process for the production of drospirenone formed the point of contention in this case.
According to Bayer, the process was equivalent to one or both of Bayer's patented processes and since Sandoz's generic contraceptive was to be regarded as directly derived from the use of that process, its distribution in the Netherlands constitutes patent infringement.
In the grounds of appeal, Bayer had stated, among other things, that the lower court had not used the correct test to determine that a patent did not cover any equivalents, i.e. H. that its owner had good reasons for foregoing protection even if it had been available. The court found that Bayer's position had no legal basis.
The lower court - according to the court - correctly checked whether the average person skilled in the art would have read from claim 1 of EP 0 918 791 that Bayer had deliberately used ruthenium salt as a catalyst for oxidation. The content of the patent, the state of the art, the intended purpose of the patented process, the associated advantages, knowledge of the existence of the substances in question, their nature and their relationship to one another as well as the extent and nature of their contribution to the desired result - everything were taken into account from the perspective of the average person skilled in the art. After considering all aspects, she concluded that Bayer had deliberately chosen ruthenium salt and that therefore the use of TEMPO as a catalyst did not infringe European patent 0 918 791. The court was not empowered to interfere in the assessment of the relevant factors by the lower court, which had neither unclear nor inappropriately justified its conclusion.
On the one hand, Bayer had overlooked in the grounds of appeal that it was clear from the judgment of the lower court that, in their opinion, the expert would not have considered TEMPO as a substance that achieved the same result as ruthenium salt, and that alone meant that its use was not considered equivalent could be. Bayer also overlooked the fact that the issue at stake here is whether, from the point of view of the skilled person, the claims - in the light of the description and the drawings - leave room for equivalents, given the twofold objective, both adequate protection for the patent owner and legal certainty to create for third parties. In deciding on this question, it is irrelevant whether the patent proprietor intended, when filing the patent application, to waive such protection for equivalents.
3. Product-by-process claims
Barcelona Court of Appeal (15th Senate), February 2, 2016 (20/2016) - Oatly AB against Liquats Vegetals SA et al.
Keyword: patent claims - product-by-process claims - scope of protection - criteria for questions of validity and infringement
European patent 731 646 related to a homogeneous and stable grain suspension which has the taste and aroma of natural oats and which can be produced by a specific process. Claim 1 was a product-by-process claim. The court of first instance had dismissed the patent proprietor's infringement suit.
On appeal, the Barcelona Court of Appeal should rule on the interpretation and scope of claim 1. The proprietor of the patent was of the opinion that product-by-process claims were genuine product claims. H. that the scope of protection is not limited to the method described. The appeals court explained that unlike countries like the United States, which have restrictive criteria, the EPO regards product-by-process claims as product claims. In the guidelines F-IV, 4.12 (status: 2013) it says: "A claim which characterizes a product through a manufacturing process is to be regarded as directed to the product as such. ... [Regardless of the exact formulation] the claim always refers to the product as such and grants absolute protection for it (see T 20/94)"; In this context, various decisions of the Boards of Appeal were made together with judgments by German courts and - for the United Kingdom - the judgment Kirin-Amgen Inc. v Hoechst Marion Roussel Ltd.  UKHL 46 listed. The appellate court found, however, that the scope of the monopoly right conferred by a patent, as defined by the claims, is only to be regarded as supported or justified in accordance with the EPO's approach if it corresponds to the contribution to the state of the art. According to the appellate court, a product-by-process claim is a type of product claim, but its technical contribution is not a product that is defined independently of the process used to manufacture it. The process is part of the claim and therefore it is not surprising that it has to be taken into account in order to delimit or interpret (but not limit) the scope of protection in infringement proceedings, at least when it is not clear that the alleged infringing product as in in the present case is identical to the claimed product.
The Court of Appeal stated that the EPO's legal doctrine is primarily geared towards the validity of the patent in the examination phase; therefore it is not directly applicable to infringement cases for which national courts have exclusive jurisdiction. However, it cannot be concluded from this that this legal doctrine is not applicable at all to infringement disputes. The appellate court stated that in the case of product-by-process claims it is not correct to decide infringement issues differently than validity issues, i. H. to separate the examination of validity from the examination of an infringement, because the two questions are closely related. When interpreting the claims, evidence from the patent grant process and, in particular, the decision of the EPO's Opposition Division should be taken into account if it is relevant to determining the actual meaning and scope of a claim.
In the present case, the scope of protection of the claim in question could be clarified by means of the statements made by the patent proprietor before the EPO's Opposition Division. The appellate court stated that in the context of an infringement issue, the patent could not be ascribed a greater scope of protection than had been claimed by the applicant himself in support of novelty. Otherwise the patent holder would be granted an excessive monopoly right by the court, which would not be justified by the actual contribution to the state of the art. The appeals court concluded that the product obtained through the manufacturing process could not have infringed the patent and dismissed the patentee's appeal.
4. Changes to the claims
Higher Regional Court of Vienna, August 19, 2014 (34R 34/14s)
Keyword: changes in claims - partial waiver - extension of the scope of protection
In the unilateral waiver procedure according to § 46 (1) Z 3 PatG, the patent office had rejected a partial waiver by the owner of the European patent 0 502 314 on the grounds that the amendment of the claim had been requested by adding features from the description. This constant practice of the Patent Office is based on the consideration that the inclusion of features from the description results in a combination of features that has neither been researched nor checked, and that this would no longer provide adequate legal security for third parties because one no longer relies on the Could leave the scope of protection of claims once granted. By naming further, specific active ingredients, the central subject matter of the claim also shifts from the general connection to the active ingredient combination. There is thus a shift in the subject matter of the invention.
The Higher Regional Court (OLG) Vienna held that in the event of a partial waiver, the patent proprietor's material power of disposal over his property right had to be recognized. If a surrender concerns only individual parts of the patent, the remaining parts of the patent remain in effect, provided that these could still form the subject of an independent patent (Oberstergericht (Supreme Court), 17 Ob 26 / 08k, Op 1/13).
According to Art. 69 EPC, the scope of protection of European patents is determined by the content of the patent claims. However, the description and the drawings should be used to interpret the claims. Particular attention should be paid to the formulation of the (characterizing parts of the) patent claims: These could be conclusive or more or less openly text.
With reference to the decision of the Enlarged Board of Appeal of the European Patent Office in G 2/88, the Higher Regional Court Vienna stated that the scope of protection of the patent had become smaller as a result of the claim that has now been applied for. The original disclosure was not exceeded either (OGH, 17 Ob 26 / 08k; 17 Ob 24 / 09t; Op 1/13), since the active substances now listed in the claim were already included as combination agents in the description of the original patent. Under these conditions - no exceeding of the original disclosure and no expansion of the scope of protection - even a change of category would be permissible (OGH, 17 Ob 26 / 08k).
By choosing the word "containing" in the granted patent, an open claim formulation was chosen. Therefore, the now requested restriction of the granted drug claim to combination active ingredient preparations does not result in an inadmissible aludation, but rather a restriction. In the concrete teaching on the dosage of the active ingredients in this combined formulation The partial subject matter of the invention according to the patent would be expressed beyond doubt. There would be no reservations about adopting the combination preparations if the subject matter of the patent was formulated openly in the granted claim and the drug claim based on the pure substance claims was then out of question, as well as if these combination preparations and those to be combined Active ingredients are disclosed in the description as belonging to the invention in question (cf. BGH Piperazinoalkylpyrazoles, X ZB 6/76).
As a result, the Higher Regional Court of Vienna changed the patent claims in accordance with the declared partial waiver.
Court of Appeal Mons, April 3, 2017 (17/1385) - Nouvag versus Dr Malak
Keyword: amendments to the claims - no violation of Art. 123 (2) EPC - case law of the boards of appeal
The surgeon Mr. M is the owner of European patent 0 971 754 for a liposuction device comprising a suction cannula; the invention is based on the idea of generating a non-circular movement of the cannula which, according to the patent, should lead to the detachment of the fat and facilitate its suction.
The company N, which sells a liposuction device, has sued for the annulment of the European patent. In 2015, the action for annulment was declared unfounded in the first instance with regard to the alleged inadmissible extension.
In violation of Art. 123 (2) EPC, the appellate body first recalls the applicable principles and the EPO guidelines, but also the case law of the boards of appeal, as can be found in the "Case Law Report of the Boards of Appeal", 7th edition 2013 (with reference to T 962/98, T 1067/97, T 714/00, among others). In particular, she points out that Art. 123 (2) EPC is based on the idea that an applicant must not be allowed to obtain an unjustified advantage; that the content of the application should not be understood as a reservoir; and that what is implicitly revealed must also be taken into account. With reference to the case law of the boards of appeal, the court found that the EPO does not prohibit intermediate generalizations, but allows them under strict conditions. Finally, the court referred to other Belgian and French judgments and, on the "intermediate generalization" argument, stated in its own words that Art. 123 (2) EPC prohibits amending a claim by adding a technical feature that isolates it is taken out of context, d. H. from the description of a specific exemplary embodiment of the invention, if the skilled reader cannot unequivocally infer from the application documents as filed that the subject-matter of the claim amended in this way completely solves a technical problem clearly identified in the application.
Company N claims that there is an intermediate generalization of two features at issue. The court rejects these arguments in application of the principles mentioned.
With regard to a third disputed feature, the court found that it was undisputed that the patent application did not contain any information on the size of the gap; when it says in the patent that the gap between the cannula and the housing is "large enough that the vibration can trigger the separation of the fat", nothing new is being said, but merely repeated that the gap must be dimensioned in such a way that it does not prevent the vibration that is supposed to loosen the fat. The size does not necessarily have to be explicitly specified; this can also be done implicitly, provided that it can be derived directly and unambiguously from the known content of the patent application and that the person skilled in the art can be certain of it may mean that the gap must be large enough to allow the fat to be removed.
Editor's note: The judgment contains interesting considerations about res judicata.
Mons Commercial Court, October 23, 2014 (14/5716) - Oliver Funderingstechnieken versus Votquenne Foundations
Keyword: changes in claims - intermediate generalization
Company O is the owner of the European patent 0 747 537 with the designation "Displacement drill and manufacturing method of a screw pile pile". In the prior art, screw piles made of concrete are known, which are formed with the aid of a helical drill head. The contribution of the patent is that the screw that is attached to the drill has a reinforcement or a cam which compresses the soil and forms a thick thread with much less force than is required using the previously known devices. Company V has been charged with patent infringement and is filing a counterclaim for annulment of the European patent for lack of novelty, lack of inventive step, lack of clarity and introduction of new subject matter during the granting process.
For the sake of clarity, the court found that the fact that the dimensions and shape of the cam was not described is not a hindrance, because the skilled person can dimension it in such a way that he receives the desired result with regard to the load-bearing capacity of the pile. Since the requirements for the load-bearing capacity depend on the ground conditions, it is not necessary to define a clear shape or dimensions for the cam. The court also found that company O rightly quoted from the EPO Examination Guidelines (F-IV, 6.5 [sentence 1, unchanged in the version of the guidelines from November 2016]).
In claim 1 of the application in the original version, only a screw was disclosed which is provided with a reinforcement at least over part of its length; In response to the opinion of the examiner, the claim was changed and the word reinforcement was replaced by "cam that compresses the base when the drill is screwed in or back in". The fact that a cam is already mentioned in claim 4 of the original application is not disputed. The company V is nevertheless of the opinion that the compression of the bottom by this cam was not described in the original version of the patent; it therefore argues that this amendment introduces new subject-matter into the patent.
With regard to the submission of the introduction of new subject-matter, the court first recalled the principles applicable in relation to Art. 123 (2) EPC; It refers to the test guidelines H-IV, 2.2 [H-IV, 2.1 in the version of the guidelines from November 2016 - unchanged, third paragraph and sentence 1 of the fourth paragraph] and H-IV, 2.3 [H-IV, 2.2 in the version of the guidelines from November 2016 - unchanged, first paragraph]: Prohibition of obtaining an unjustified advantage; Consideration of the entire content of the application; Possibility of direct and unambiguous derivation; Inclusion of implicitly contained facts. Against this background, the court is of the opinion that the feature added to the claim can be derived directly and unambiguously from the description on the basis of the implicit elements.
Company V also argues that Company O made an inadmissible intermediate generalization by introducing new elements into the patent. With reference to the EPO Examination Guidelines [HV, 3.2.1 - the first three paragraphs, the third paragraph in the version of the guidelines of November 2016 being partially amended], the court recalls the process of intermediate generalization, in particular the singling out of an isolated one Feature from an originally disclosed feature combination. In the opinion of the court, the company O did not combine different embodiments with the inclusion of the compression by the cam disks in claim 1 in order to artificially arrive at a certain combination. The isolation of the "bottom cams" feature is justified by the general disclosure which describes the formation of a thick thread by reinforcing the screw formed by one or more cam washers. Company O has made no intermediate generalization.
The court comes to the conclusion that Company V's arguments to challenge the European patent are not valid. It also states that the EPO examiner did not react to the amendment of the patent application, which is also an indication of the legal validity, even if this is not binding on the court.
Federal Court of Justice, November 25, 2014 (X ZR 119/09) - Grinding product
Keyword: changes in claims - intermediate generalization
The patent related to the technical problem of providing a grinding product that enables a significantly longer service life than known products (EP 779 851).
The BGH confirmed its case law on the admissibility of intermediate generalizations. If features of an embodiment, which together, but also individually, promote the success achieved by the invention, the more detailed development of the protected invention, it is generally permissible to grant the patent by including some or all of these features in the patent claim restrict (BGH X ZB 9/89 - Splice chamber; and BGH X ZR 12/10). In this context, too, the claimed combination must, in its entirety, represent a technical teaching that the skilled person can infer from the original documents as a possible embodiment of the invention (BGH X ZB 18/00 - Torque transmission device).
In the present case, these prerequisites were not met and there was an inadmissible intermediate generalization. The person skilled in the art was able to infer from the representation of an exemplary embodiment that was not explained in more detail that an effect sought by the invention (here: an open and flexible structure of a knitted cloth) through a certain combination of two technical measures (here: the combination of tricot and satin meshes in certain arrangement) is achieved. However, this did not necessarily reveal that the same also applies to any other combination of these two measures.
Federal Court of Justice, February 17, 2015 (X ZR 161/12) - Wound treatment device
Keyword: changes in claims - inescapable trap
European patent 1,088,569 relates to a portable wound treatment device.
According to the case law of the Federal Court of Justice, German patents and utility models do not have to be declared null and void or deleted if their subject matter goes beyond the content of the application as originally filed, provided the change consists in the addition of a feature that was not disclosed in the documents originally submitted which leads to a mere restriction of the subject matter applied for. On the other hand, the annulment or deletion cannot be avoided if the change leads to the subject of the application being changed to an aluding from the content of the documents originally submitted.
The question of whether this jurisprudence also applies to European patents has so far been left open by the Federal Court of Justice (BGH Xa ZB 14/09 - Angle measuring device). In the present decision, the BGH answered this question in the affirmative - contrary to the opinion of the Federal Patent Court.
The BGH stated that its case law does not contradict the provisions of the European Patent Convention. According to the case law of the EPA Boards of Appeal, the inclusion of a restrictive feature in the claim that was not disclosed as belonging to the invention in the original application documents usually leads to the revocation of the patent under Art. 123 (2), 100 (c) EPC.
The Enlarged Board of Appeal had admitted in G 1/93 that the view it advocated would lead to severe consequences for the patent proprietor, because even after changing his application he runs the risk of being caught in an "inescapable trap" and losing everything. if the change restricts the scope of protection of the patent. In the opinion of the BGH, on the other hand, its jurisprudence makes it possible to dispense with a complete annulment of the patent without having to compromise on the protection of the legitimate interests of third parties and the public.
In the specific case, the addition of the feature that was not disclosed in the original documents was a mere restriction of the registered object and not an aluding. This distinction is to be determined according to whether only an instruction for technical action is concretized, which is disclosed in these documents as belonging to the invention, or whether a technical aspect is addressed that is neither in its concrete form nor even in abstract form can be found as belonging to the invention. The decisive feature here - contrary to the opinion of the patent court - was not to be classified as Aliud.
Court of First Instance, Paris, May 28, 2015 (12/11963) - Nexira versus San-Ei
Keyword: changes in claims - intermediate generalization - numerical ranges
Company S is the owner of the European patent 1,611,159 with the designation "Modified Gum Arabic from Acacia Senegal", which goes back to a PCT application. Gum arabic is an edible exudate from plant sap that, due to its physicochemical properties, is used as an emulsifier in the manufacture of certain foods and cosmetic products.
Company N had sued Company S for the nullity of the French part of the European patent, stating that the subject-matter of the patent was expanded beyond the content of the application as originally filed.
The court found that amended Claim 1 of European Patent 1,611,159 included the specification of a range (between 42.3 and 138 nm) for the radius of gyration of gum arabic, which was not specified in this form either in the international application or in Claim 1 or was included in the description of the patent.
Company S claimed that the values of the range (42.3 and 138 nm) were included in the description. This includes examples where the radius of gyration value is within range.
In contrast, the court stated that the data on the radii of gyration correspond to certain exemplary embodiments. With the inclusion of these results in claim 1 of the patent, a range for the radius of gyration, which was determined in exemplary embodiments of the description of the international application for a gum arabic with a certain shape, size and thus also composition, is generalized to each gum arabic.
Even if it is possible to generalize a range of values derived from an example, such an intermediate generalization is only permissible under Art. 123 (2) EPC if the person skilled in the art can unequivocally infer from the application as filed that these features are not closely related to the other features of the exemplary embodiment, but relate directly and unambiguously to the more general context. This intermediate generalization is only admissible if it is the result of unambiguous information that the skilled person would infer from the example and the content of the application as originally filed. In the present case, when reading the international application, the person skilled in the art could not recognize beyond doubt that these features of two exemplary embodiments for gum arabic of a certain size and composition are not closely related to the other features of these exemplary embodiments, but are directly and clearly related to the more general ones Relate to context.
Therefore, the inclusion of this range of radii of gyration, which was not included in claim 1 of the international application, in claim 1 of European patent 1,611,159 is an extension of the subject matter of the original application. Thus the court annulled the French part of the patent.
Court of Appeal, Paris, June 26, 2015 (14/23888) - Arkema v General Manager INPI
Keyword: amendments to the claims - request for limitation of the French part of a European patent - opposition pending before the EPO
Company H applied in 2013 - at a time when opposition proceedings were pending before the EPO against this patent - to the French Patent Office (INPI) to restrict the French part of its European patent 1,716,216. The INPI granted the 2014 restriction request. Company A lodged a complaint against this decision of the Director General of INPI and requested that it be annulled. This is the subject of the present proceedings. Company A does not deny that the proprietor of a European patent is free to restrict only the French part of his contested European patent before the INPI without having to operate a central restriction before the EPO, but the rules applicable to the restriction must be based on the European Take into account the nature of the patent. In the opinion of company A, the INPI should have declared the restriction application inadmissible because of the pending objection. To this end, she cited in particular the direct applicability of the EPC in France, the hierarchy of norms and the resulting practical difficulties and the lack of legal certainty.
The court found that there is no rule of law which precludes the possibility of applying to the INPI to restrict only the French part of a European patent when opposition proceedings are pending before the EPO.
The INPI restriction regulated in Articles L 613-24 and R 631-24 of the French Patent Act (CPI) applies to national (L 613-25) and European (L 614-12) patents whose annulment is sought and to the grounds of inadmissibility listed in Art. R 613-45 CPI do not include ongoing opposition proceedings before the EPO.
Nothing in all of these provisions restricts the right of the European patent proprietor to limit the scope of protection of the French part of his patent, which is the subject of opposition proceedings before the EPO, before the INPI in order to oppose an action for annulment brought before a French court . Art. 105a EPC pursues a different objective, namely to avoid two different EPO decisions being applied in all the states in which the European patent is in force, and cannot justify a denial of this right.
The INPI therefore rightly declared the application for restriction admissible and the appeal lodged against it must be rejected. Since the Court of First Instance in Paris has brought an action for annulment against the limited patent, company A is also not authorized to contest the content of the INPI's decision in the present proceedings.
Editor's Note: The patent has since been approved by the decision T 860/12 revoked for good. The appeal by Arkema against the judgment of the appellate court was therefore no longer negotiated (Court of Cassation - Chamber of Commerce, May 24, 2017 (15-24416)).
Court of Appeal, Paris, April 8, 2016 (14/00580) - Exten.S & Eram versus Calzados Hergar
Keyword: changes in claims - impermissible expansion
Company E is the owner of the European patent 1 383 402, which is based on a PCT application with the priority of a French patent application. The invention relates to a shoe sole that can be conveniently used for different foot widths. Company E had sued Company C, a company under Spanish law, for patent infringement in relation to claims 1 to 4. The Paris Court of First Instance had declared the claims for extension of the application beyond the original content of the underlying PCT application null and void.
The appellate court stated that in claim 1 of the patent as granted, "one or more openings" were identified in the part of the forefoot of the sole floor. In the PCT application on which the patent in suit is based and should therefore be used as the only reference, "openings" are mentioned in the description with regard to the sole base and in claim 2. Neither the description nor the claims or the drawings of the PCT application indicated the presence of only one opening in the shoe sole.
Company E (the patent owner) had suggested that the overhangs interacted with the openings and therefore only one opening was implicitly provided in the front part of the sole bottom; she relied on a single passage of the description, according to which "this stretchable insert is flat on the upper side and provided with one or more protrusions on the underside. These protrusions are designed to blend into the bottom of the sole." The court contradicted this, since the PCT application only mentions several openings and company C (the defendant) had rightly submitted that the presence of only one protrusion on the insert does not necessarily mean that the sole floor only has one opening show.
The court further stated that, according to claim 1 of the PCT application, the rigid sole base is attached to an insert by casting or gluing, while this feature is missing in claim 1 of the patent in suit - in which the scope of protection is limited. Conversely, there it says that "the said insert (...) is applied to the said sole by gluing or spray welding" and the insert "is attached between the adhesive areas of the bottom and the upper". The appellate court therefore upheld the judgment of the court of first instance.
Editor's note: See also Court of First Instance, Paris, October 3, 2014 (10/10179) - Nestec SA & Nespresso France v Ethical Coffee Company et al.
Court of Appeal, Paris, October 7, 2016 (14/16544) - PMT Italia v ABK Machinery
Keyword: changes in claims - impermissible expansion
Company P is the owner of the European patent 1,215,336 with the designation "Drainage strip for a paper machine". She had brought an infringement action against company A, whereupon the Paris Court of First Instance declared the French part of the patent null and void because of the extension of the subject-matter. Company P appealed against this judgment.
In the proceedings before the EPO, company P had amended the main claim of the patent application in the version originally filed and supplemented the description with a clarification regarding the vertical alignment of the joint axes. In the appeal, company P referred to an at least implicit disclosure in the description and argued, with reference to the attached drawings, that the addition was only the written description of these drawings and clarified or restricted the scope of protection of the patent because it was restrictive Feature handle.
The court referred to the wording of Art. 84 EPC, according to which the subject-matter of a claim must be supported by the description. The description could refer to drawings to illustrate the form and arrangement of the individual components, which could better illustrate the description but not replace it. A reformulation of the technical problem would not violate Art. 123 (2) EPC, provided that the more precise problem and its solution could be derived from the overall content of the application as filed.
The court agreed with company A that the skilled person could not infer from the original application how the joint axes were to be aligned - namely perpendicular to the stringing run - in order to carry out the invention as it emerged from the version of the claims as amended before the EPO. These elements are not implicitly disclosed in the description or in the drawings. The drawings are optional and should complement the description for purposes of interpretation and not vice versa; Only the description is mandatory - after all, something that is claimed but not described is not protected.
Company A had also rightly pointed out that the written reply from Company P's legal advisor to the EPO examiner showed that the new claim could make a technical contribution and not a simple reformulation of the technical problem and its solution which could be derived from the overall content of the application as filed.
The judgment was upheld by the appeals court.
GB United Kingdom
Patents Court, September 22, 2014 - CompactGTL v Velocys plc & Ors  EWHC 2951 (Pat)
Keyword: amendments to claims - corrections
In the infringement proceedings relating to European patents (UK) 1 206 508 and 1 206 509, Velocys applied for an amendment to the main claims and the corresponding passages of the description for both patents on the grounds that they contained an obvious error. A request was made to replace the specification "residence time" with "contact time". It was undisputed that, without this change, the claims concerned would be void due to insufficient disclosure.
The judge set out the principles to be applied. The amendment of a patent was inadmissible if it a) resulted in the specification disclosing additional subject matter, or b) extended the scope of protection of the patent (see Section 76 (3) Patents Act 1977, cf. . Art. 123 (2) and (3) EPC). It is undisputed that the proposed changes would violate both prohibitions, unless there was an obvious error in the indication of "residence time". In that case, the changes would not be objectionable, because with them only the wording of the claims would be adapted to the meaning that would be inferred by a person skilled in the art anyway. The court therefore had to apply the principles applicable to requests under R. 139 EPC (previously R. 88 EPC 1973). The judge cited the interpretation of R. 88, second sentence, EPC 1973 by the Enlarged Board of Appeal in G 11/91 (No. 5 - 6 of the reasons). The Enlarged Board of Appeal had found that - although Art. 123 EPC also applied to requests for correction under R. 88 EPC 1973 - an amendment permitted under this provision could not expand the subject matter or the scope of protection, because "the corrected statement only expresses that what a person skilled in the art, using general technical knowledge, was able to infer from the disclosure-related parts of a European patent application in its entirety on the filing date. "
Velocys had to prove that the statement "residence time" in the claims was such an obvious error that the skilled person would immediately understand that this was not intended and that the patentee clearly meant "contact time". In view of the disclosures and the expert evidence, the judge found that it would be immediately clear to a person skilled in the art that the statements "residence time less than 5 seconds" and "contact time less than 5 seconds" are inconsistent and incompatible. So there had to be a mistake. Second, after a brief consideration, the skilled person would come to the conclusion that the patent proprietor must have intended to use "contact time less than 5 seconds" throughout and to claim it as such. The error in the claims was therefore evident - and so was the correction.
GB United Kingdom
Patents Court, April 24, 2015 - IPCOM GmbH & Co KG against HTC Europe Co Ltd & Ors  EWHC 1034 (Pat)
Keyword: changes in claims - impermissible expansion - intermediate generalization
The plaintiff IPCom had applied for the amendment of its European patent (UK) 1 841 268, which concerned the "access of a mobile station to a random access channel depending on its user class".
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