Art. 111 para. 1 PatA; Provisional protection conferred by a published European patent application:
The plaintiff had requested a preliminary injunction on 26 October 2021, based on two European patent applications for which the EPO had already scheduled the date of grant for sometime in November 2021.
Still before the actual grant, a third party jumped in and lodged entitlement proceedings at the FPC with respect to certain claims of both these patents. The third party also requested the EPO to stay the proceedings for grant, in accordance with R. 14 EPC. Accordingly, EPO proceedings are currently stayed and the patents have not yet been issued.
The judgment holds that the wording of Art. 111 para. 1 PatA leaves no room for an interpretarion that would allow provisional protection when examination on the merits has been concluded but the patent has not yet been issued; see the hn above.
Thus, the entitlement action thwarted the PI proceedings. However, the PI proceedings were not dismissed (as requested by defendant) but merely suspended while entitlement proceedings are pending; Art. 126 para. 1 CPC.
Reported by Martin WILMING
- Dr. Mark SCHWEIZER
- Susanne ANDERHALDEN
Representative(s) of Plaintiff:
Representative(s) of Defendant:
- Urs PORTMANN (PV)
JUDGMENT IN FULL
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