Octrooien, tussen Letter en Geest (Patents & Claim Construction: Between a Literal or More Purposive Approach)
Berichten Industriële Eigendom, Vol. 2, pp. 64-70, February 2013
26 Pages Posted: 16 Mar 2013
Elaborate case-comment (6 pages) on the most important ruling in patent law in The Netherlands in the last five years. It addresses the ruling of the Dutch Supreme Court 25 May 2012 AGA v. Occlutech.
The paper contains a historical, transnational and comparative approach, tracing back the origins of some of the recent controversy on claim construction in the Netherlands, while also reflecting on recent literature and case-law in Germany and the United Kingdom. The author contrasts and compares the Dutch approach on claim construction with the new developments of the Revised Protocol of art. 69 of the European Patent Convention (EPC).
The paper sets out and summarizes the Dutch standard for claim construction, touching on important elements in legal practice such as the impact of (a) the two-part form of a claim, (b) the file wrapper and patent prosecution history, (c) equivalence and (d) whether the degree of inventive step or innovative character of the patent, warrants a bigger scope of protection.
It also compares the outcome of the decisions on the same patent between the same parties in Germany and the United Kingdom AGA and Occlutech.
The paper concludes with looking back on the achievements of the EPC, while also looking forward to the new legislative developments surrounding the Unitary Patent and the Agreement for a Unified Patent Court.
Note to readers: the case-comment appeared in a leading IP review in The Netherlands and is therefore in Dutch, but should be eligible for e.g. Google Translation. The PDF also contains the ruling of the Dutch Supreme Court and the advisory opinion of the Advocate-General.
Note: Downloadable document is in Dutch.
Keywords: patents, patent, claim, claims, claim construction, European Patent Convention, EPC, 69, equivalence, inventive step, two-part-form, scope of protection, unitary patent, agreement for a unified patent court, Netherlands, Germany, United Kingdom, AGA, Occlutech, octrooi, inbreuk, beschermingsomvang
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