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District Court of The Hague 7 June 2017, Case no. 485407 / HA ZA 15-370, ECLI:NL:RBDHA:2017:5959, Baggermaatschappij Boskalis B.V. (‘Boskalis’) v. Dredging International N.V. (‘Dredging’)

The present nullity proceedings initiated by Boskalis concern the dutch designation of European Patent EP 1 888 849 B2 for an “Apparatus with flexibly mounted spud carriage” held by Dredging. The District Court of the Hague rejects Boskalis’ arguments based on added matter and inventive step and dismisses the claims.

Dredging in the present proceedings successfully defends the validity of its patent as amended as a result of opposition proceedings initiated by Boskalis; the Technical Board of Appeal of the European Patent Office (‘EPO’) by decision dated 23 June 2015 (T 1339/13) maintained the patent in amended form (without any amendments to the claims).

With regard to Boskalis’ arguments that there is a case of added matter (also on the basis of the concept of immediate generalization), the District Court first of all rules that Boskalis, in view of Dredging’s defenses, did not sufficiently substantiate its claims. The District Court inter alia considers that the addition of a certain element in the claim in fact concerned a limitation of a more general preferred embodiment described in the patent and that leaving out certain elements in the claim was allowed in this case, as these elements are not described in combination with a preferred embodiment in the body of the patent, but in combination with ‘non-limitative exemplary embodiments’.

As to inventive step, the District Court rules that the closest prior art did not contain any pointers to the solution provided by the patent. Boskalis’ arguments on the basis of another document are also rejected, as this document according to the District Court did not add anything to the document deemed to constitute the closest prior art.

Finally, the District Court rejects Dredging’s claim for full reimbursement of needlessly incurred (legal) costs; according to Dredging, Boskalis should in any event have waited for the outcome of the EPO proceedings before initiating the present nullity proceedings. In general considering the average length and uncertain outcome of EPO proceedings, as well as Dredging’s successful objections against Boskalis’ request for accelerated proceedings, the District Court finds that Boskalis had a (legitimate) interest to obtain certainty in the present nullity proceedings.

A copy of the judgment can be read here.

Headnote: Tim Iserief, NautaDutilh