Comparison of Patent Claim Construction between Netherlands and Germany on Basis of AGA v. Occlutech

Abstract

This article provides a brief overview on how the Dutch and German courts interpret the claims of a patent. It briefly compares each national approach on the basis of the recent AGA v Occlutech litigation in both countries.

The dispute between AGA and Occlutech involved socalled ‘‘occluders’’, a collapsible medical device for closing defects in the septum wall of the heart through cardiac catheterisation.

Items discussed are: claim construction and judicial balancing under the new "Protocol for the Interpretation of Art. 69 of the European Patent Convention", equivalence, pioneer inventions and file wrapper estoppel.

Keywords: patent, patents, claims, equivalence, pioneer inventions, file wrapper estoppel, claim construction, infringement, intellectual property, life sciences, AGA, Occlutech

JEL Classification: O34, K42