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Maurits Westerik


High Point S.a.r.l. (Luxemburg) against KPN B.V., District Court of The Hague, the Netherlands, 3 April 2024

Second Dutch case concerning High Point’s EP 0 522 772 patent (“Wireless access telephone-to-telephone network interface architecture”, hereinafter the Patent).

High Point and KPN have been in litigation regarding the infringement and validity of the Patent since at least 2009. This is the second Dutch case on the merits regarding these topics.

In the first case, decided on 15 September 2010 (not published), the court denied the infringement claims of High Point and granted KPN’s nullity claims regarding the original B1 version of the Dutch part of the Patent, based on added matter.

Since then, High Point filed a request for a central limitation on 19 January 2017, based on article 105a EPC. The limitation was granted and the limited B3 version was thus retroactively considered to have been in force until the Patent lapsed in June 2012.

In this second case, wherein High Point again sought to enforce the Patent by seeking a declaration of (historical) infringement, KPN argued that High Point had no standing to sue, since the B1 version had already been found invalid for the Netherlands and the Dutch Supreme Court had not wanted to hear the appeal in the first case based on the B3 version of the claims. (For the reader’s benefit: the reason was that the Dutch Supreme Court found High Point to have committed an abuse of right by bringing that appeal on the basis of then recent centrally limitated version in the same set of proceedings, whereas the B1 version had been the object of discussion in first instance and in appeal.)

This interim discussion on standing to sue then went to the Dutch Supreme Court pending the second case. The Dutch Supreme Court found that the retroactive effect of the central limitation meant that the B1 version had been limited and thus had never been found invalid, giving High Point standing to sue regarding the period between 22 May 2008 and 30 June 2012. KPN then argued that the 2010 judgment already had force of res iudicata.

The court now finds that since the 2010 judgment was based on the B1 version of the claims, it did not generally have force of res iudicata concerning the B3 version, except for the specific elements that had remained unchanged, especially element G. Element G had been found to contain added matter and the court finds that High Point had not continued its original appeal against that decision back then, so that the court now finds – after extensive analysis of the procedural facts – that for element G, it is still bound by its earlier finding that it contained added subject matter, thus in principle invalidating the B3 version, even though it had already lapsed.

The judgment (in Dutch) can be read here on