Coloplast A/S v. Hollister B.V., Hollister Services B.V. and Hollister Incorporated, District Court The Hague, The Netherlands, 6 September 2017. Case No. ECLI:NL:RBDHA:2017:10120
Coloplast holds a European patent with regard to a ready-to-use urinary catheter assembly (the “Patent”). This Patent has been declared void by the District Court The Hague in legal proceedings between Coloplast and Medical4You B.V. in January 2017. Coloplast filed an appeal against said decision which is still pending. Due to the fact that Coloplast, in these legal proceedings against Hollister et al., also relied on an auxiliary request that has not been relied upon in the earlier proceedings, the District Court The Hague needs to reassess the validity of the Patent and/or the alleged infringement.
Coloplast argues that the VaPro intermittent catheter of Hollister et al. infringes the Patent. In the VaPro intermittent catheter assembly the liquid swelling medium is stored in an active vapor strip. The catheter itself is surrounded by a sleeve which is made of liquid impermeable and gas permeable material. The active vapor strip is located outside the sleeve and the liquid swelling medium enters the compartment of the catheter in the form of water vapour.
Hollister et al. primarily argued that the VaPro intermittent catheter does not infringe the Patent since it does not use a liquid swelling medium to produce a low-friction surface. The VaPro catheter instead uses water vapour. Coloplast however argues that the skilled person in the art would understand that the Patent also aims for a catheter that uses a liquid swelling medium from an active vapor strip through the intermediary step of water vapour, as the result is a ready-to-use catheter.
The District Court rules that the extent of protection conferred by a European patent is determined by the claims and that the description and drawings are nevertheless used to interpret the claims (art. 69 EPC). In examining this, the Protocol on the interpretation of art. 69 EPC should be used as guidance.
After having applied such an examination the District Court rules that it would be conflicting with legal certainty if the extent of protection of the Patent of Coloplast would also include an embodiment in which water vapour is used to produce a low-friction surface. The Patent does not provide sufficient basis for such a reasoning. Therefore the District Court does not find the Patent infringed and rejects the injunction sought by Coloplast.
Read the decision (in Dutch) here.
Head note: Eelco Bergsma, Taylor Wessing
