*** BREAKING *** Be prepared for patent term adjustments, to compensate for delays during prosecution

Reading time: 3 minutes

Case No. O2020_08/15 | Main hearing of 1 April 2021

The main hearing in this matter earlier today was highly interesting.

The ACME catalog
Acme Corp.

In brief, Acme Corp. asserts infringement of a European patent by Globex Corp. The tricky thing is that the patent had already been cancelled from the register at the end of its 20y term more than two years(!) before the alleged infringement took place.

Globex Corp.

Globex Corp. essentially contends that the complaint is simply an impertinence. What no longer exists cannot be infringed. Hank Scorpio, the CEO of Globex Corp., shouted out:

Where would we be?

But it appears to be not that easy. Acme Corp. essentially argued that it has been cheated out of several years of patent term because the patent was granted only more than 15 years(!) after the filing date. In Acme’s view, this demands for a term adjustment to compensate for the delay during prosecution through no fault of their own. Such term adjustments are granted ex officio in the U.S., and Acme argued that this was only fair.

We want this!

During a break, I had a quick chat with a person who prefers to not see his name on this Blog but who is knowledgeable of the current status of the draft of the forthcoming revision of the Swiss Patent Act; see this Blog here for further information on the draft bill. It appears that some wished for U.S.-style patent term adjustments (similar to 35 U.S.C. 154) during public consultation, which will indeed be included in the final draft of the revised Swiss Patent Act. Accordingly, I understand that we may see patents valid in Switzerland with terms reaching months, if not years beyond the 20y term. This is unprecedented in Europe, to the best of my knowledge!

Stay tuned for further details to be published soon. It may well be that the transitional provisions of the revised PatA turn out to be decisive for the case at hand. And others. Yours, maybe?

Reported by Martin WILMING

April Fool! 😂

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How to deal with an unclear feature in terms of infringement?

Case No. O2019_005 | Hearing of 17 March 2021

Reading time: 6 minutes
Hafner’s logo

As reported on this Blog here, Sanipat GmbH and Hafner AG are litigating over certain sealing strips for e.g. shower trays, i.e. Hafner’s ISO-SETÂź:

Hafner’s website

Sanipat had initially asserted EP 2 405 067 B1 and CH 703 691 (see the complaint below), but EP 067 has meanwhile been revoked by a Board of Appeal of the EPO; see T 0717/20 – 3.2.03 below. However, CH 691 is still in the game, and this is where it gets interesting.

Before EP 067 was revoked at the EPO, the judge-rapporteur’s expert opinion had held that EP 067 was valid. I understood from the pleadings that this was essentially due to a different interpretation of the feature ‘KlebeflĂ€che’ (adhesion surface). The Board of Appeal held that any surface that can be used for adhesion purposes reads on that feature:

But it appears that the expert opinion concluded that ‘KlebeflĂ€che’ implies an adhesive property of that surface. Accordingly, the expert opinion held that EP 067 was valid. This does not matter anymore for EP 067 itself, in view of the EPO’s revocation decision. But the same claim construction issue arises with respect to CH 691. It will be interesting to see how this turns out in the final judgement.

Notably, even though the FPC had requested accelerated appeal proccedings at the EPO, which request was granted, the FPC still followed its own timeline and moved forward with commissioning of the expert opinion.

Which is good, not only because of the second patent-in-suit!

In view of the (maybe, unexpected) claim construction in the judge-rapporteur’s expert opinion, Hafner presented further lines of attack against CH 691. However, these new lines of attack have not been admitted into the proceedings, as requested by Sanipat during the hearing.

On the infringement side, the parties disagree on the correct interpretation of cut protection strip (‘Schnittschutz-Streifen’). This is what the inspection in accordance with Art. 181, 182 CPC was all about. The cutting experiments showed that ISO-SETÂź could well be cut with relative ease with a knife. Still, ISO-SETÂź has an aramid backing in the area of the joint to be sealed. The experiment showed that this backing increased the necessary force to cut through the strip about fivefold.

But is that all that is needed to be cut protective?

A reference product (in my understanding, according to the patent in suit beyond dispute) is FlexzargeÂź SchnittschutzÂź of GABAG. This product has a metal backing that could not be cut through with a knife.

Hafner argued that the inspection clearly showed that ISO-SET had no cut protection strip; the feature implied that cutting had to be prevented (completely). On the other hand, Sanipat argues that ISO-SET has improved protection against accidential cutting due to the aramid backing, and that Hafner itself claimed that this aramid backing is meant to keep the sealing tight even when the silicone joint is replaced.

Finally, Hafner made an interesting argument on the consequences of unclarity. With reference to Heinrich (PatG 51, N 20), Hafner argued that an unclear claim has no scope at all. But even if one would find this too harsh of a consequence, unclarity should be dealt with in a similar way as in contract law, i.e. in dubio contra stipulatorem (133 III 118, ¶ 2). In Hafner’s view, this should be the case in patent matters a forteriori, since the defendant did not have a chance to proof-read (and accept) the ‘contract’ beforehand.

I could not stop thinking about this over the weekend.

Sure, a patentee has to bear the consequences of an unclear feature in the assessement of validity, simply because an «unclear term cannot be used to distinguish the invention from the prior art» (EPO Guidelines, G VI, 1.); an unclear feature is thus being construed (very) broadly in examination and validity later on. But when a claim is held valid despite the unclarity, can the interpretation of that feature then be any different in terms of infringement?

In O2013_008, the FPC applied the ‘broadest interpretation’ approach in the assessment of infringement of a claim  («Da dem Anspruch immer die breiteste Auslegung gegeben werden muss, […]»; see ¶ 4.2, p. 22, last paragraph, emphasis added). Later decisions have frequently referred to this ever since, but with the explanation that such a broad interpretation must not impair the intended functioning of the feature in the context of the invention; see e.g. O2019_003 (¶ 22).

I am not aware of any decision re validity where mercy had been given to an unclear feature. And I cannot readily see that two different standards of claim construction can be applied in the assessment of validity and infringement, in particular not before one and the same court.  However, in the German bifurcated system, the Federal Supreme Court had apparently some sympathy for a narrowest possible claim construction in an infringement case in view of an unclear feature; X ZR 95/05:

It will be interesting to see how the FPC deals with this argument.

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. O2019_005 | Hearing of 17 March 2021

Sanipat GmbH
./.
Hafner AG

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Dr. Alfred KÖPF

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Lukas ABEGG

Representative(s) of Sanipat:

    • Dr. Andri HESS (Homburger)
    • Dr. Bruno Meyer (prins), assisting in patent matters

Representative(s) of Hafner:

    • Dr. Michael RITSCHER (MLL)
    • Michelle AMMANN (MLL)
    • Silvan LATSCHA (L&S), assisting in patent matters

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ANNOUNCEMENT

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COMPLAINT AS FILED

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EP 2 405 067 B1

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T 0717/20 – 3.2.03

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CH 703 691 C1

Second partial surrender, published on 30 April 2019:

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Laurastar and Innosteam have settled

Case No. O2018_016 | Decision of 20 May 2020

Reading time: 2 minutes
Laurastar logo

We have reported earlier on this Blog here about the litigation betwwen Laurastar and Innosteam about ownership of (the national phases of) two PCT applications, WO 2018/006994 A1 and WO 2018/036653 A1; see the EPO Register here and here. The patent applications are about devices and methods for producing instant steam (WO’994) and instant hot water (WO’653), for use e.g. in devices for ironing.

Innosteam logo

Nothing has surfaced after the main hearing of 25 June 2019. But now, I came across the FPC’s decision of 20 May 2020 to close the proceedings because the parties have ultimately settled, after a series of suspensions of the further course of the proceedings after the main hearing.

Laurastar is bearing the court fees; no party compensations are awarded.

I understand that the so-called InstantSteam feature is still a major selling point of Innosteam, the efficiency of which purportedly allows for the commercialization of a high end ironing system at an affordable price.

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. O2018_016 | Decision of 20 May 2020

Laurastar SA
./.
Innosteam Swiss SA

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Ralph SCHLOSSER
    • Dr. Giovanni GERVASIO

Judge-rapporteur:

    • Dr. Giovanni GERVASIO

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant:

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DECISION IN FULL

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Inspection on site on the day of the main hearing

Reading time: 2 minutes

I have recently attended a main hearing at the FPC that began only in the afternoon because a site visit took place on the same day immediately before the hearing, at the premises of the defendant.

Note that this site visit was not for the purpose of a precise description in accordance with Art. 77(1) lit. b PatA (see e.g. this Blog here), but rather an inspection in accordance with Art. 181, 182 CPC. To the best of my knowledge, this was the first time that the FPC actually conducted such an inspection «in order to see the facts for itself or for a better understanding of the case.»

The judges did not bring any measuring instruments or analytical equipment — but both parties did, and I feel that the judges appreciated the demonstrations and measurements being made on the object of inspection during operation. The results of the measurements (showcased in the header image) have later on been discussed at the hearing .

Getting to the bottom of things is a good thing to do. In my perception, the inspection went smoothly and could (should?) set a precedent.

Reported by Martin WILMING

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BI’s uphill fight re validity of EP 1 379 220

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Case No. O2018_008 | Hearing of 10 December 2020

BI’s logo

The main hearing in this matter had initially been scheduled and announced for 24 September 2020, but was cancelled on short notice.

Finally, the main hearing took place earlier this week, on 10 December 2020.

Tiotropium bromide

Glenmark challenges validity of Boehringer Ingelheim’s EP(CH) 1 379 220 H1, which is the Swiss part of EP 1 379 220 B1 after a partial waiver. The patent is about tiotropium capsules for inhalation and relates to BI’s SpirivaÂź HandihalerÂź for the management of chronic obstructive pulmonary disease (COPD).

There is big business behind; Spiriva¼ is still a blockbuster with € 2.3 bn of sales in 2019, but generic competition is on the rise. And it is an uphill fight for BI in view of what courts have already decided elsewhere concerning the very same patent (or a closely related one, such as in Norway). Just to name a few decisions that I could readily spot:

Germany

The Netherlands

United Kingdom

Norway

On the other hand, the High Court of Ireland held that EP 220 is valid; see [2017] IEHC 495.

UPDATE 18 December 2020:

Thanks to Simon HOLZER for bringing the Irish decision to my attention.

Now, which claims are still at stake in the Swiss proceedings? As a quick recap, claim 1 as initially granted reads as follows:

Capsules for inhalation which contain as the inhalable powder tiotropium in admixture with a physiologically acceptable excipient, characterised in that the capsule material has a reduced moisture content as a TEWS or halogen drier moisture content of less than 15%.

With the partial waiver, BI split the independent claim into two alternatives (amendments marked-up in bold; only available in German, for the time being); see the claims in mark-up and BI’s request below:

Claim 1 after waiver

Inhalationskapseln, die als Inhalationspulver Tiotropium im Gemisch mit einem physiologisch unbedenklichen Hilfsstoff enthalten, dadurch gekennzeichnet, dass als Kapselmaterial Gelatine im Gemisch mit dem Zusatz Polyethylenglycol (PEG) in einem Anteil von 1–10 Gew-%, bevorzugt 3–8 %, verwendet wird und dass das Kapselmaterial einen reduzierten Feuchtegehalt als TEWS- oder Halogentrockner-Feuchte von ≀ 10% aufweist und dass der physiologisch unbedenkliche Hilfsstoff Lactose ist.

Claim 3 after waiver

Inhalationskapseln, die als Inhalationspulver Tiotropium im Gemisch mit einem physiologisch unbedenklichen Hilfsstoff enthalten, dadurch gekennzeichnet, dass das Kapselmaterial Hydroxypropylmethylcellulose ist und einen reduzierten Feuchtegehalt als TEWS- oder Halogentrockner-Feuchte von ≀ 5% aufweist und dass der physiologisch unbedenkliche Hilfsstoff Lactose ist.
Glenmark’s logo

I understood from the pleadings that the judge-rapporteur’s expert opinion held that both claims 1 and 3 had been obvious in view of the prior art.

Both parties essentially only argued re (in)validity of claim 3, i.e. inhalation capsules based on hydroxypropyl methylcellulose (hypromellose; HPMC). In particular, the parties apparently dissent on whether claim 3 of EP 220 H1 provides for an (unexpected) advantage over the prior art, or merely an alternative.

I could not stay until the very end of the hearing, but I do not assume that I missed an essential twist of things after the lunch break. Assuming that the parties have not settled, a judgment can be expected early next year.

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. O2018_008 | Hearing of 10 December 2020

Glenmark Pharmaceuticals Europe Ltd
./.
Boehringer Ingelheim Pharma GmbH & Co. KG

Panel of Judges:

    • Dr. Daniel ALDER
    • Dr. Tobias BREMI
    • Marco ZARDI

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant:

    • Dr. Simon HOLZER (MLL)
    • Dr. Ulrike CIESLA (MLL), assisting in patent matters

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ANNOUNCEMENT

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PATENT IN SUIT

EP 1 379 220 B1 (as granted):

EP(CH) 1 379 220 H1 (after partial waiver):

Claims after partial waiver, mark-up:

Request of partial waiver:

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Waiting for a Fulvestrant judgment while the end of the 20y term approaches

Reading time: 3 minutes

Case No. O2019_006 | Main hearing of 16 November 2020

Sandoz’s logo

AstraZeneca asserts EP(CH) 2 266 573 B1 (see EPO Register and Swissreg for further information) against Sandoz’s generic version of AZ’s FaslodexÂź, i.e. Fulvestrant Sandoz 250 mg/5ml (Swissmedic approval no. 56778).

AZ’s logo

Note that Sandoz’s generic has been on the market in Switzerland since 26 July 2016. AZ had asserted a different patent against the same generic already in summary proceedings S2016_007, i.e. EP 1 250 138 B2 (see this Blog here), but has apparently withdrawn that request later. Earlier this year, AZ’s complaint based on yet another patent, i.e. EP 1 272 195 B1, has failed, too (O2017_014); see this Blog here. Prior to the present main proceedings, AZ sought interim injunctive relief based on EP’573 (S2019_004), but could not establish urgency anymore; see this Blog here.

Meanwhile, EP’573 comes close to the end of its term, which is 8 January 2021. It will be interesting to see whether the judgment is handed down before the patent lapses.

Watches?!

Validity of EP’573 in view of Howell and McLeskey has already been dealt with by the FPC and the Supreme Court in proceedings between AZ and Actavis; see this Blog here. That’s an uphill fight for Sandoz.

But the case is not only about (in)validity of EP’573. Sandoz also disputes that its generic actually infringes EP’573. Note that the claim requires 10% (w/v) of ethanol. Sandoz argues that ethanol refers to the substance EtOH, not to the various degrees of purity of EtOH that are available on the market. Apparently, Sandoz uses 10% EtOH with a purity of 96%, i.e. only 9.6% of the substance EtOH. Sandoz argues that EP’573 itself puts emphasis on certain dilutions of EtOH, e.g. in [0031] and [0046]; and [0034] mentions «about 10%» of ethanol, but not the claim.

Yet another interesting discussion came up with respect to AZ’s expenses for the assisting patent attorneys. Sandoz questioned whether costs incurred by a patent attorney who is a partner of the same law firm that does the legal representation are actually refundable as «necessary expenses» in accordance with Art. 3 lit. a CostR.

Now, what will be first: The end of the 20y term of the patent, or the judgment? Holding a bet, anyone?

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. O2019_006 | Main hearing of 16 November 2020

(1) AstraZeneca AB
(2) AstraZeneca AG
./.
Sandoz Pharmaceuticals AG

Panel of Judges:

    • Dr. Rudolf RENTSCH
    • Prisca VON BALLMOOS
    • Marco ZARDI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of AstraZeneca:

    • Dr. Michael RITSCHER (MLL)
    • Dr. Kilian SCHÄRLI (MLL)
    • Dr. Ulrike CIESLA (MLL), assisting in patent matters

Representative(s) of Sandoz:

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ANNOUNCEMENT

—

PATENT IN SUIT

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A very serious soap opera

Reading time: 6 minutes

Case No. O2019_001 | Hearing of 16 September 2020

FroschÂź product

As mentioned earlier on this Blog here, Werner & Mertz (well known e.g. for its brands ErdalÂź and FroschÂź) has sued Compad Consulting GmbH for lack of entitlement to a patent application, i.e. unlawful usurpation thereof.

The patent application at stake is EP 2 592 134; the patent application is licensed to the Swiss start-up company Good Soaps. See the European Patent Register for further bibliographic information.

The file wrapper at the EPO is telling: The complaint of 9 January 2019, the reply of 20 September 2019 (including all appendices) as well as the comments on the rejoinder of 5 December 2019 are available online. The instruction hearing took place on 8 July 2019 — without a settlement being reached.

There had already been some attention in the media a while ago (see e.g. here and here), when the defendant had lodged a press release. Apparently, the plaintiff now also approached the media shortly before the hearing. SRF reported again about this case yesterday in Regionaljournal Zentralschweiz:

Frankly, I am not going to participate in reading the tea leafs here, trying to conclude something from the fact that the inventor has waived her right to be publicly mentioned; or that the applicant is not Good Soaps itself, but rather a consulting firm that has given a license to Good Soaps. These things per se may well happen for good and serious reasons. And I cannot readily spot any troll-like behaviour, either.

UPDATE 18 September 2020:

For some strange reason, the designation of inventor is available in the online file wrapper at the EPO, contrary to R. 144 (c) EPC.

In the end, for an assignment action to be successful, a plaintiff has to prove the following:

    1. that he actually made the invention on his own (when, where and how);
    2. how the defendant was made aware of this invention; and
    3. how this invention is reflected in the application(s) in suit.

See e.g. O2012_001 (r 27) and O2015_009.

The main hearing took place earlier today, and it was definitely one worth attending.

Good Soaps product

Ms Regine SCHNEIDER had met with some people of Werner & Mertz on 27 August 2009 in Mainz, in particular with Mr Karl-Heinz QUADE. That is one of the few things on which the parties can agree. At that time, Ms SCHNEIDER had been employed by Kolb, as head of the business unit New Business. I understood from the pleadings that Ms SCHNEIDER had been decruited on the very next day, i.e. 28 August 2009, and that she was immediately released from work because Kolb closed down the whole business unit. Accordingly, it will be decisive whether the invention — as claimed in the application at stake, or at least the basic concept thereof — had been communicated by Mr QUADE to Ms SCHNEIDER in that meeting.

Evidently, the content of this single meeting is of critical importance. Since there is only very limited written evidence in this respect (only an agenda or invitation, in my understanding), witness testimony will likely be decisive. Accordingly, Ms SCHNEIDER was deposed as a witness today. To the best of my knowledge, this was actually the first time that a witness has been publicly deposed in a main hearing at the FPC. Ms SCHNEIDER was first deposed by the President and the judge-rapporteur, and both parties were given the opportunity to ask follow-up questions. This was actually a pretty smooth exercise.

Frog’s home turf?

But, maybe, Mr QUADE remembers things differently(?). Unfortunately, we did not learn more about this meeting from his perspective today. I understood from the pleadings that the defendant had pressed criminal charges against Mr QUADE, for some wrongdoing in connection with the present matter, and that he was therefore prevented from being deposed as a witness in the hearing today.  The FPC has apparently initiated proceedings for judicial assistance of the German authorities, to have Mr QUADE deposed in Germany. Defendant’s counsel requested the FPC to reconsider this procedural move: Even if Mr QUADE would confirm all that has been asserted by the plaintiff by now, it would still not be sufficient for the plaintiff to fulfill all three criteria as outlined above. Note that judicial assistance might easily take a further 4-30(!) months.

The further course of the proceedings is not yet cast in stone. If the FPC abstains from having Mr QUADE deposed, the judgment would be issued as a next step. If Mr QUADE is being deposed, the parties will again have an opportunity to comment on his testimony, be it in writing or yet another hearing.

Reported by Martin WILMING

Credit: Header image by Karsten Lamprecht from Pixabay

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BIBLIOGRAPHY

Case No. O2019_001 | Hearing of 16 September 2020

Werner & Mertz
./.
Compad Consulting GmbH

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Dr. Frank SCHAGER

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant:

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ANNOUNCEMENT

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PATENT APPLICATION IN SUIT

Clean version of the DREX, i.e. the version for which the EPO indicated its intention to grant a patent:

 

Application as filed, published as EP 2 592 134 A2:


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Cluster Failure During a Hearing about Cluster Failure

Reading time: 4 minutes

Case No. O2019_004 | Hearing of 30 June 2020

We first reported here that a blockchain infringement case might be pending at the FPC with some involvement of MLL. Shortly thereafter, on June 4, 2020, the official announcement followed and revealed that Sunshine Software Development GmbH had taken action against FRIENDZ SA for alleged infringement of the Swiss part of EP 1 151 591; see EPO Register and Swissreg for further information. Note that the patent has lapsed on 13 January 2020, after 20 years.

FRIENDZ SA describes itself as a start-up that aims to

[…] decentralize the digital advertising industry.

According to their website,

[…] brands can use Friendz Coins to access digital advertising.

These coins seem to be at the center of the present case.

As noted previously, little information is publically available about Sunshine Software Development.

EP 591 is directed to data access and management. From what could be gathered from the arguments made at the hearing, the subject matter of EP 591 seems to be relevant at least to Ethereum, and possibly other blockchain platforms. Much of the discussion related to infringement seemed to evolve around whether defendants shifted («verschieben») or replicated data, or what the difference between the two would be. Specifically, the two independent claims 1 and 30 of EP 591 comprise the following features:

the data storage means shift data redundantly stored in the system independent of an access of the computer unit as a function of the determined parameters of data transmissions between the data storage means.

redundantly stored data is shifted independently of an access of the computer unit (CL) to the data as a function of the determined parameters of data transmissions between the data storage means.

Apparently, the judge-rapporteur had concluded in his expert opinion that defendants did not shift data, and consequently did not infringe on claims 1 and 30.

We gathered from the pleadings that plaintiffs alleged a replication and subsequent deletion of data, which might realize a shift of data. Defendants appeared to argue that accidental deletion of redundantly saved data would not constitute a shift of data, and that replication was done for data safety reasons.

Speaking of accidental things related to IT,  the hearing was up to a rocky start when the monitors of the judges would not work. But a FPC hearing on blockchain was not going to be stopped by some measly IT issue – or was it? The IT gods stepped up their game and also let the microphones fail, and at a later point the projector. But even when every piece of IT had apparently failed at least once during the hearing, the President shrugged off the cluster failure — «[…] ein Clusterausfall!» —, determined to continue the hearing. Cluster failure is apparently not only a potential blockchain issue …

As usual, the parties were asked whether they would be interested in settlement talks under the court’s guidance. Both parties affirmed, though plaintiffs indicated that while the amount of compensation may be negotiable, the validity and infringement would not be.

As always, the public was not allowed to stay for the settlement talks, and it remains to be seen if a judgement will ever see the light of the day.

Reported by Philippe KNÜSEL and Martin WILMING

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BIBLIOGRAPHY

Case No. O2019_004 | Hearing of 30 June 2020

Sunshine Software Development GmbH
./.
FRIENDZ SA

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dany VOGEL
    • Christoph MÜLLER

Judge-rapporteur:

    • Dany VOGEL

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Kilian SCHÄRLI (MLL)
    • Dr. Simon HOLZER (MLL)
    • Andreas ASCHERL (K. A. L & E), assisting in patent matters

Representative(s) of Defendant:

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ANNOUNCEMENT

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PATENT IN SUIT

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The dark side of the novum

Reading time: 6 minutes

Case No. O2018_004 | Hearing of 3 September 2020

Some background of the subject-matter at stake can be found on this Blog here. In brief, Synova asserts EP 1 833 636 B1 » against Avonisys, while Avonisys counter-claims for nullity and seeks a declaration of non-infringement. Further bibliographic information about EP 636 B1 » can be found in the European Register and Swissreg.

Sometimes, the Supreme Court clarifies things once and for all. Sometimes, it doesn’t. The very recent decision 4A_583/2019 of 19 August 2020 (published on 28 August 2020) very likely is an example of the latter.

It became clear at the main hearing that the publication of 4A_583/2019 derailed the proceedings to some extent. From the official announcement of the hearing, we already knew that the plaintiff / patentee had partially waived the patent in suit after receipt of the judge-rapporteur’s expert opinion, i.e. well after the closure of the file (request of 19 June 2020, published 14 August 2020); see the corresponding CH/EP 1 833 636 H1.

The independent claims as amended read as follows (available in German only):

Claim 1

Verfahren zur Erzeugung eines FlĂŒssigkeitsstrahls (5), der zur FĂŒhrung einer in ihn eingekoppelte[n] Laserstrahlung (10) in der Art eines Wellenleiters geeignet ist der als Strahlleiter fĂŒr eine Laserstrahlung (10) dient, wobei eine in ihn eingekoppelte Laserstrahlung (10) in der Art eines Wellenleiters gefĂŒhrt ist zwecks Bearbeitung eines WerkstĂŒcks (3), wobei der FlĂŒssigkeitsstrahl (5) mit einer FlĂŒssigkeitsdĂŒse (1) erzeugt wird und wobei derFlĂŒssigkeitsstrahl (5) mantelseitig mit einem Gasstrom (35) umgeben wird, dadurch gekennzeichnet, dass zur VerlĂ€ngerung des stabilen Bereichs der StrahllĂ€nge der FlĂŒssigkeitsstrahl (5) durch eine, entfernt von der FlĂŒssigkeitsdĂŒse (1) angeordnete, den Gasstrom (35) formende GasauslassdĂŒse (23, 79) hindurchgefĂŒhrt wird, wobei zwischen der FlĂŒssigkeitsdĂŒse und der GasauslassdĂŒse (23, 79) ein Zwischenraum mit einer trichterförmigen, nach unten zusammenlaufenden Wandung ausgebildet ist, wobei ein GehĂ€use (7) mit einer umlaufenden Wandung (20, 24) als vertikal stehender Doppelkegel mit einander gegenĂŒberliegenden Kegelspitzen ausgebildet ist, wobei in der einen oberen Kegelspitze die FlĂŒssigkeitsdĂŒse und in der gegenĂŒberliegenden unteren Kegelspitze die GasauslassdĂŒse angeordnet ist, wobei das Beaufschlagungsgas in einen Hohlraum des GehĂ€uses derart eingebracht wird, dass der eingebrachte Gasstrom den FlĂŒssigkeitsstrahl nicht direkt trifft, sondern dass der gesamte Hohlraum mit dem Beaufschlagungsgas fĂŒllbar ist und dass das Beaufschlagungsgas als den FlĂŒssigkeitsstrahl umhĂŒllender Gasstrom das GehĂ€use verlĂ€sst.

Claim 6

Vorrichtung zur Erzeugung eines FlĂŒssigkeitsstrahls (5), der zur FĂŒhrung einer in ihn eingekopelten[n] Laserstrahlung (10= in der Art eines Wellenleiters geeignet istder als Strahlleiter fĂŒr eine Laserstrahlung (10) dient, wobei eine in ihn eingekoppelte Laserstrahlung (10) in der Art eines Wellenleiters gefĂŒhrt ist zwecks Bearbeitung eines WerkstĂŒcks (3), mit einer FlĂŒssigkeitsdĂŒse (1) zum Erzeugen des FlĂŒssigkeitsstrahls (5) und mit Mitteln zum mantelseitigen Umgeben des FlĂŒssigkeitsstrahls (5) mit einem Gasstrom (35), dadurch gekennzeichnet, dass zur VerlĂ€ngerung des stabilen Bereichs der StrahllĂ€nge die Mittel zum mantelseitigen Umgeben des FlĂŒssigkeitsstrahls (5) mit einem Gasstrom (35) eine entfernt von der FlĂŒssigkeitsdĂŒse (1) angeordnete, den Gasstrom (35) formende GasauslassdĂŒse (23, 79) umfassen, durch welche der FlĂŒssigkeitsstrahl (5) hindurchgefĂŒhrt werden kann, wobei zwischen der FlĂŒssigkeitsdĂŒse und der GasauslassdĂŒse (23, 79) ein Zwischenraum mit einer trichterförmigen, nach unten zusammenlaufenden Wandung ausgebildet ist, wobei ein GehĂ€use (7) mit einer umlaufenden, die FlĂŒssigkeitsdĂŒse aufnehmenden Wandung (20, 24) und mit wenigstens einem Gaseinlass (25a-d) fĂŒr ein Beaufschlagungsgas vorgesehen ist, wobei der wenigstens eine Gaseinlass (25a-d) der FlĂŒssigkeitsdĂŒse (1) strömungsmĂ€ssig nachgeordnet ist, und wobei das GehĂ€use (7) als Doppelkegel ausgebildet ist, wobei in der einen Kegelspitze die FlĂŒssigkeitsdĂŒse (1) angeordnet ist, und die andere Kegelspitze die GasauslassdĂŒse (23) hat, wobei das Beaufschlagungsgas in eine m Hohlraum eines GehĂ€uses derart eingebracht wird, dass der eingebrachte Gasstrom den FlĂŒssigkeitsstrahl nicht direkt trifft, sondern dass der gesamte Hohlraum mit dem Beaufschlagungsgas fĂŒllbar ist und dass das Beaufschlagungsgas als den FlĂŒssigkeitsstrahl umhĂŒllender Gasstrom das GehĂ€use verlĂ€sst.

Thus, the complaint has to be dismissed as devoid of purpose, in view of 4A_583/2019, right?

Oh man, if it only was that easy …

The presiding judge had immediately informed the parties by e-mail of the Supreme Court’s judgment 4A_583/2019, and that the FPC tends towards a decision that the complaint is to be dismissed as devoid of purpose — provided that the defendant did not rely on the partial waiver as a novum.

It was bound to happen: This is exactly what the defendant did the very next day.

The dark side …

The main hearing dealt with only this procedural issue in first place. After deliberation, the presiding judge held that the plaintiff‘s submission of the partial waiver was impermissible, in view of 4A_583/2019. But this did not result in the case being devoid of purpose: The defendant‘s submission of the partial waiver was held to be admissible as a proper novum.

Now that the partial waiver is being considered in the proceedings, it will be highly interesting to see how this finally unfolds, i.e. what this means for the complaint (infringement) and the counterclaim (nullity; declaration of non-infringement).

We understood from the pleadings that the judge-rapporteur’s expert opinion was quite favorable for the defendant in that EP 636 B1 » was not infringed.

The parties did not settle; we are eagerly awaiting the judgment!

Reported by Tina VOCI and Martin WILMING

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BIBLIOGRAPHY

Case No. O2018_004 | Hearing of 3 September 2020

Synova AG
./.
(1)
(2)
(3)
(4)
Avonisys AG
Stephan Mohren
Jens GĂ€belein
Jeroen Hribar

Panel of Judges:

    • Dr. Andri HESS
    • Dr. Tobias BREMI
    • Lara DORIGO

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Michael RITSCHER (MLL)
    • Louisa GALBRAITH (MLL)
    • Werner ROSHARDT (K&P), assisting in patent matters
    • Stephan KESSLER (K&P), assisting in patent matters

Representative(s) of Defendants:

    • Dr. Ralph SCHLOSSER (KasserSchlosser)
    • Dr. Christoph ENGELBRECHT (Blum), assisting in patent matters
    • Dr. Regula RÜEDI (Blum), assisting in patent matters
    • Dr. Zacharias STELZER (Blum), assisting in patent matters

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ANNOUNCEMENT

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PATENT IN SUIT

As initially granted:

 

After the partial waiver:


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Compad Consulting and Werner & Mertz litigating over entitlement to a patent

Reading time: 2 minutes

As reported by Christopher GILB in the Luzerner Zeitung today, there is some litigation going on at the FPC about entitlement to a European patent pertaining to a washing agent that is free from palm oil.

Where’s the patent?

It appears that Werner & Mertz (well known e.g. for its brands ErdalÂź and FroschÂź) has sued the Swiss start-up company Good Soaps for lack of entitlement to the patent, i.e. unlawful usurpation thereof.

The patent has not been identified in the news. I could not leave it at that and did my homework. The patent application at stake is EP 2 592 134 »; the currently registered applicant is Compad Consulting GmbH. See the European Patent Register for further information. The file wrapper is telling: The complaint of 9 January 2019, the reply of 20 September 2019 (including all appendices) as well as the comments on the rejoinder of 5 December 2019 are available online. The instruction hearing took place on 8 July 2019 — without a settlement being reached.

The main hearing is said to be scheduled for 16 September 2020. I trust this will get interesting …

UPDATE 19 August 2020:

The official announcement of the main hearing has just been published by the FPC. No surprises anymore, it’s indeed all about EP 2 592 134 ».

Reported by Martin WILMING

Header image courtesy of T. K. Naliaka, under CC BY-SA 4.0

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BIBLIOGRAPHY

Case No. O2019_001

Werner & Mertz
./.
Compad Consulting GmbH

Panel of Judges:

    • Dr. Mark SCHWEIZER
    • Dr. Tobias BREMI
    • Dr. Frank SCHAGER

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

Representative(s) of Defendant / Counterclaimant:

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PATENT APPLICATION IN SUIT

Clean version of the DREX, i.e. the version for which the EPO indicated its intention to grant a patent:

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A dossier that has risen like yeast dough

Reading time: 7 minutes

Case No. O2017_002 | Hearing of 5 February 2020

On 5 February 2020 the main hearing in this matter took place at the FPC. We have reported on this matter already on 3 February 2017 when ex parte interim measures had been denied (see this Blog here) and on 26 May 2017 when EPO prosecution and opposition proceedings had been stayed (see this Blog here).

Tomologic logo

In first place, Tomologic‘s EP 2 485 864 B1 (see EPO Register) is at stake. Bystronic requested that EP(CH) 864 be declared null and void, or that it be assigned to co-ownership as an auxiliary measure. Some further patents or patent applications are concerned in addition, in particular national parts of WO 2012/136262 A1 such as e.g. EP 2 694 241; see EPO Register).

Tomologic has countersued for infringement of EP 864 by Bystronic’s software product Bysoft 7 with the implemented function to create cutting plans:

As an introductory remark, the presiding judge invited Tomologic to provide a translation of a Swedish decision that had been submitted earlier; unfortunately, it was not indicated in the hearing what that decision was all about. Even though Bystronic had not commented on that Swedish document, the court felt «not at ease» with having a document on file which is not comprehensible for the judges.

Both parties gave PPT presentations. The presiding judge reminded the parties that this case was already extraordinarily voluminous, even before oral pleadings, and that there was no need to repeat the assertions already made in writing.

Clunky mike

Tomologic used flipchart sketches and short films in further support of the PPT presentation. In our perception, flipcharts are generally welcomed by the court. But how tho deal with the table-top microphone in such situations? Any drawer / presenter should be prepared to be reprimanded by the court clerk to use the microphone. Furthermore, flip chart collages, once they are completed, shall form part of the minutes and should not be re-arranged too heavily in later pleadings.

On the merits of the case, we understand that the judge-rapporteur’s expert opinion had been in favor of Bystronic, at least to the extent nullity of EP 864 is concerned. Claim 1 of EP 864 as granted reads as follows (underlined feature amended over claim 1 as originally filed; potentially distinguishing feature over the prior art highlighted in yellow):


Claim 1 of EP 864, marked-up

Method for machine cutting several parts out of a piece of material using a beam cutting technology, said method providing a set of controlling rules and variables for cutting two dimensional shapes or patterns, where one rule or a combination of several rules are used for the cutting operation depending on the shape or pattern to be cut, said shape or pattern forming said parts out of said piece of material, characterised in that said set of controlling rules comprises rules for the forming of a cluster of parts with free form shapes, said parts being positioned so close to each other so that only the thickness of one cut made by the cutting beam is found between adjacent parts whenever the shape of said parts allows it.

It appears that the introduction of «one cut made by» may have caused an issue under Art. 123(2) EPC. Further, the correct understanding of (rules for the forming of a cluster of parts with) «free form shapes» in the characterizing part of the claim was a big issue in the hearing.  In Tomologic’s view, this was a reference to «free form nesting». Free form nesting is a technique which — in contrast to «rectangular nesting» or «rectangular bounding box nesting» — arranges free form parts in a space-saving manner, based on perimeter segments rather than outer perimeter boxes.

In a nutshell, Tomologic held that the claim requires forming of a cluster by means of free from nesting. On the contrary, Bystronic held that it could only be the parts themselves which have a free from shape, without any indication whatsoever of the envisaged nesting technique. It is our understanding that only according to Tomologic’s interpretation, the respective claim feature might potentially constitute a differentiating feature over so-called rectangular nesting. At this point of the hearing, the linguistic discussion about English grammar was quite intense. Bystronic explained the difference by way of a «baking dilemma», i.e. that «baking products with yeast» is not necessarily the same as «products baked with yeast»; the term «with» could not be construed as «by means of» at will.

We understood that the expert opinion had apparently held that the feature as claimed is not much of a limitation, and that it does in particular not exclude rectangular clustering; see e.g. ¶ [0052] of EP 864 in this respect:

Faszination Blech

It has been referred in the pleadings re (lack of) novelty to JP H09-285886 (D1, also available as EN translation) and a further document called «Rao» (likely Rao et al., Int J Adv Manuf Tenchnol (2007) 33: 436-448; available here). Further, it was referred to the publication «Faszination Blech» (you cannot make this up).

We conclude from the pleadings that the above issues had likely not been resolved by Tomologic’s auxiliary request(s) to maintain and assert EP 864 in amended / limited form. Rather, the auxiliary request(s) occasioned further issues re clarity and, maybe, enablement.

Interestingly, Bystronic had initially requested a declaratory judgement of non-infringement; see p 1-9 of the complaint as filed and the FPC’s letter of 16 January 2017:

by the FPC, indicating the case number (O2017_002) and the subject-matter of the complaint, i.e. request for declaratory judgement of non-infringement.

We conclude from the pleadings that the court might have (partially?) not considered this request for declaratory judgement, but this remains to be confirmed in the final judgement.

The pleadings further circled around Bystronic’s alleged contribution to the subject-matter of EP 864, as the basis for the requested assignment to co-ownership. Note that Bystronic had initially requested assignment to co-ownership for the whole patent family of EP 864, as well as the patent family of WO 2012/136262 A1.

The value in dispute was indicated as 2m CHF for the main claim and 1m CHF for the counterclaim. Actual costs incurred by the parties apparently by far exceed the refundable amounts according to the tariff.

The parties finally agreed to have settlement discussions.

Reported by Jolanda MINDER and Martin WILMING

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BIBLIOGRAPHY

Case No. O2017_002 | Hearing of 5 February 2020

Bystronic Laser AG
./.
Tomologic AB

Panel of Judges:

    • Dr. Thomas LEGLER
    • Dr. Tobias BREMI
    • Christoph MÜLLER
    • Christophe SAAM
    • Dr. Rudolf RENTSCH

Judge-rapporteur:

    • Dr. Tobias BREMI

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Markus FRICK (Walder Wyss)
    • Manuel BIGLER (Walder Wyss)
    • Dr. Peter WALSER (Frei), assisting in patent matters
    • Dr. Markus MÜLLER (Frei), assisting in patent matters
    • Dr. Michael BERGER (Bystronic), assisting in patent matters

Former representative(s) of Plaintiff:

    • Catherine WEISSER
    • Paul ROSENICH (PPR), assisting in patent matters

Representative(s) of Defendant / Counterclaimant:

    • Dr. Simon HOLZER (MLL)
    • Martin TOLETI (Blum), assisting in patent matters
    • Dr. Christoph ENGELBRECHT (Blum), assisting in patent matters
    • Henrik HÄGGLÖF (Zacco), assisting in patent matters

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ANNOUNCEMENT

 

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PATENT IN SUIT

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Fulvestrant, the never-ending story(?)

Reading time: 9 minutes

Case No. O2017_014 | Hearing of 20 January 2020

Fulvestrant, a breast cancer medication of the class of antiestrogens, is probably the most frequently appearing bone of contention at the FPC to date.

Fulvestrant (aka ICI 182,780), the active ingredient of AZ's FaslodexÂź
Fulvestrant (aka ICI 182,780), the active ingredient of AZ’s FaslodexÂź

Fulvestrant per se is generic since about 2004 (EP 138 504 B1). However, patents relating to certain second-medical uses of fulvestrant are still in force today.

The St Gall’ish part of the story
AZ logo

AstraZeneca asserts that EP(CH) 1 272 195 (see EPO Register and Swissreg for further information) is infringed by Sandoz’s generic version of AZ’s Faslodex¼, i.e. Fulvestrant Sandoz 250 mg/5ml (Swissmedic approval no. 56778).

KSSG logo

The FPC’s seat is in St. Gall — you knew this. But this time, even the inventor is based in St. Gall: Prof. Dr. Beat THÜRLIMANN, chief physician at the breast center of the St. Gall cantonal hospital. A very St. Gall’ish part of the complex portfolio of fulvestrant patents and litigation in Switzerland and beyond, isn’t it?

Sandoz logo

Note that Sandoz’s generic has been on the market in Switzerland ever since 26 July 2016, despite various attempts of AZ to stop this; see this Blog here (PI proceedings, based on EP 2 266 573 B1) and here (PI proceedings, based on EP 1 250 138 B2). Yet further proceedings between AZ and Sandoz are currently co-pending at the FPC (O2018_010), with AZ asserting infringement of EP 2 266 573 B1 in main proceedings. I understood from the pleadings that AZ’s reply (incl. the first counter to Sandoz’s nullity plea in defense) was due only after this hearing, i.e. on 23 January 2020.

A quick recap of the procedural history

It all started off with a pretty standard exchange of briefs in infringement proceedings (AZ’s submissions in red; Sandoz’s submissions in blue; court interventions in yellow):

10 Jul 2017 Stmt of claim
11 Oct 2017 Stmt of defense w plea for nullity
8 Dec 2017 Partial reply re validity
4 Sep 2018 Preparatory hearing
22 Oct 2018 Full reply
6 Dec 2018 Rejoinder
11 Dec 2018 Closure of the file
18 Jan 2019 Comments on rejoinder
12 Mar 2019 Expert opinion of judge-rapporteur
5 Apr 2019 Summons for main hearing (28 Aug 2019)
10 May 2019 Cmt on expert opinion Cmt on expert opinion

The judge-rapporteur’s expert opinion had been unfavorable for AZ: In the judge-rapporteur’s view, EP 195 as granted was neither valid nor infringed.

I understood from the pleadings that AZ had apparently asserted EP 195 as granted only, without any ‘verbal limitation’ inter partes, neither as a main request nor as an auxiliary request. Later, proceedings ran off the rails (as defendant put it):

29 Jul 2019 Advance notice, patent will be partially waived
8 Aug 2019 Notice that partial waiver has been filed
12 Aug 2019 Main hearing cancelled; defendant to comment on partially waived patent
11 Sep 2019 Request that deadline be lifted
13 Sep 2019 Setting deadline for defendant
11 Oct 2019 Comments on partially waived patent
15 Oct 2019 Publication of the partially waived patent

I understood from the pleadings that the actual subject-matter of the partially waived patent had never been pleaded by AZ, neither with respect to validity nor infringement. Apparently, it was only at the main hearing that AZ did so — partially due to the fact that the FPC had ordered AZ to respond to defendant’s submission of 11 October 2019 at the main hearing.

the leftovers of the patent in suit after the partial waiver

Claim 1 of EP 195 as granted and maintained in EPO opposition/appeal proceedings was quite concise, a straight-forward second medical use claim:

Use of fulvestrant in the preparation of a medicament for the treatment of a patient with breast cancer who previously has been treated with an aromatase inhibitor and tamoxifen and has failed with such previous treatment.

The partial waiver in accordance with Art. 24 PatA added quite a lot to this (marked-up):

Additional features in claim 1, by way of a partial waiver
The pleadings in a nutshell

AZ argued that validity of the partially waived patent had essentially already been decided by the FPC, in proceedings O2018_009 with decision of 27 May 2019 (in line with T 1680/17 of an EPO Board of Appeal), with only the target patient group being now even more more precisely defined. AZ emphasized that this was the trigger for the partial waiver that had been filed only shortly therafter, on 30 July 2019; not defendant’s nullity plea in defense and/or the judge-rapporteur’s expert opinion.

It was also referred to decision X ZR 59/17 of the German Supreme Court, revoking EP 1 250 138 B2 within the same patent family. In AZ’s view, this was due to an incorrect formulation of the technical problem, disregarding the problem-solution approach; and with the threshold for a reasonable expectation of success being set much too low.

Both parties disagreed on what ‘failure with a treatment’ means; see ¶ [0018] of EP 195 for a definition. In AZ’s view, this covers both adjuvant and palliative therapy. Defendant pointed out that switching therapy does not necessarily mean that the first therapy had failed. Rather, therapy is frequently switched before resistance occurs; thus, therapy has not yet failed.

Defendant pointed out that no substantiated assertions had been on file until the day before the hearing concerning the actual scope of the partially waived patent, as well as validity and infringement thereof.

Further, admissibility of the partial waiver after formal closure of the file was a big issue. Note that this has also been at stake in the recent decision O2016_012, where the panel of judges had been split 3:2 in favor of admissibility. However, defendant noted that the factual setup was very different. Contrary to the present matter, the partial waiver in O2016_012 did not require any new pleadings or assertions:

In O2016_012, the partially waived patent integrated smoothly into the proceedings as pleaded beforhand. This was of great importance ('von ganz wesentlicher Bedeutung') for admissiblity in that case.

In any event, defendant apparently considers the partial waiver after formal closure of the file as an improper novum (‘gewillkĂŒrtes Novum’; ‘Potestativ-Novum’), contrary to what had been held in O2016_012. Defendant referred to a decision of the Cantonal Court Zug in this respect, i.e. ES 2018 449. This decision is totally unrelated to patents. But it has been held that a document that has only been created after closure of the file cannot be admitted anymore into the proceedings when the respective assertion of the counterparty had already been made in the statement of defense, i.e. when the document could well have been created and submitted before closure of the file; see ¶2.7:

A document that had only been created after closure of the file, even though the respective assertion that the document was meant to counter had already been made in the statement of defense, is belated.
UPDATE 30 January 2020:

I have obtained a copy of this decision only yesterday. Accordingly, this post has been updated today with some more information about the actual content of the decision.

Finally, defendant placed the procedural request that a deadline be set for a written response to AZ’s validity arguments presented at the hearing, should the court admit them into the proceedings.

Please find some quick notes from the hearing below this post.

A hot potato?

The presiding judge made an opening remark that ‘contrary to what defendant  apparently assumed the court has not yet decided on the admissiblity of the partial waiver after closure of the file.’ That was not much of a surprise. However, the presiding judge further noted that the court is not inclined to decide on that issue while the appeal in case O2016_012 is still pending.

I was flabbergasted. I understood from the later pleadings that admissibility of the partial waiver after formal closure of the file might not necessarily be the decisive issue in this case. But let’s assume it was: Is an informal stay of proceedings appropriate? I have my doubts. It might easily take the Supreme Court six months or more to decide on that issue, which is (much) longer than what it normally takes from the main hearing to the decision being handed down.

Meanwhile in Germany

A PI request of AZ based on EP 195 has been rejected by the Regional Court Dusseldorf (4C O 10/18, 5 July 2018). Likewise, AZ’s appeal failed at the Higher Regional Court (2 U 28/18, 9 January 2018). In a nutshell, AZ could not establish that the treatment regime as claimed had actually been used to an extent that could not remain unnoticed by the defendant (if it had been used at all in more recent times).

Nullity proceedings re EP 195 are pending at the FPC since 14 August 2017, with case no. 3Ni32/17(EP).

Reported by Martin WILMING

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BIBLIOGRAPHY

Case No. O2017_014 | Hearing of 20 January 2020

AstraZeneca AB
./.
Sandoz Pharmaceuticals AG

Panel of Judges:

    • Prof. Dr. Daniel KRAUS
    • Prisca VON BALLMOOS
    • Marco ZARDI

Judge-rapporteur:

    • Prisca VON BALLMOOS

Court Clerk:

    • Susanne ANDERHALDEN

Representative(s) of Plaintiff:

    • Dr. Michael RITSCHER (MLL)
    • Dr. Kilian SCHÄRLI (MLL)
    • Andreas BRAUN (MLL)
    • Dr. Ulrike CIESLA (MLL), assisting in patent matters

Representative(s) of Defendant / Patentee:

    • Dr. Andri HESS (Homburger)
    • Julian SCHWALLER (Homburger)
    • Dr. Elisabeth GREINER (df-mp), assisting in patent matters

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ANNOUNCEMENT

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PATENT IN SUIT

EP 195 as granted by the EPO:

 

EP 195 after partial waiver in Switzerland:

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T 0108/09 – 3.3.02

Maintenance of EP 195 as granted by a BoA of the EPO:

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SOME LIVE NOTES FROM THE HEARING

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