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DK – Danish Maritime and Commercial High Court limits patent claims and finds indirect patent infringement

24 Apr 2019

The Danish Maritime and Commercial High Court has handed down an interesting judgment in a case concerning validity and infringement of two patents. The judgment is interesting for two reasons.

Partly because the Maritime and Commercial High Court amended the existing patent claims, which the courts rarely do, partly because the Maritime and Commercial High Court established indirect infringement, which has rarely been seen in Danish case law.

A company commenced legal proceedings against a Danish holder of two patents. The two patents roughly concern a system and a method for joining perforated bands or perforated band fittings used in ceiling constructions in the construction industry. The company believed that the patents were invalid due to lack of novelty and inventive step.

On the other hand, the patent holder was of the opinion that a number of the company’s products were infringing the two patents, which the patent holder believed were valid either in their original form or in limited versions.

In its judgment of 8 February 2019, the Maritime and Commercial High Court found that both patents were to be upheld, but only to a limited extent. Accordingly, the Maritime and Commercial High Court in reality rewrote the existing claims in the two patents (however, as suggested by the patent holder).

As the product sold by the company did not include all technical features in the amended patent claim, one patent was not infringed. Since the product, however, included the most important features of the invention and as the product was suitable and intended for use in the same manner as described in the patent, the Maritime and Commercial High Court found that, by selling and marketing its product, the company had supplied means for infringing the invention in one patent. Accordingly, there was indirect patent infringement.

The decision is interesting because, among other things, there are by and large no examples in Danish case law of the courts having found indirect infringement, irrespective of the fact that the concept is of great importance in practice. Moreover, the courts rarely rewrite patent claims that have been granted.

A copy of the Maritime and Commercial Court’s judgment (in Danish) can be read here.

It is not known whether the decision will be appealed.

Headnote: Jeppe Brinck-Jensen and Emilie Kristine Krogh Lerstrøm, Plesner