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NL – High Point v. KPN / Supreme Court

19 Feb 2020

High Point SARL v. KPN B.V., Supreme Court of the Netherlands, 14 February 2020, Case No. ECLI:NL:HR:2020:258

Is it contrary to Articles 68 and 105a-105c EPC that local rules of due process prevent that a centrally limited patent is invoked in proceedings? Interpretation of Articles 68 and 105a-105c EPC according to Articles 31 and 32 of the Vienna Convention on the law of Treaties.

The wording of Art. 68 and 105a-105c EPC according to the Supreme Court do not indicate that the right granted to the patent holder to request a central limitation of his patent prevents the national court from invoking such a central limitation if his appeal is deemed contrary to the requirements of due process. The context of these provisions and the object and purpose of the EPC do not point in a different direction.

Also, the Supreme Court ruled that according to the history of Art. 68 and 105a-105c EPC it was taken into consideration that the central limitation procedure before the EPO could coincide with a dispute before the national court in which the validity of that patent is at issue. It was noted that the European limitation procedure does not prevail over the national procedure, and that national procedural law determines whether a pending national action must be stayed or can be continued.

In accordance with this, the Supreme Court ruled in Scimed v. Medinol that the European limitation procedure does not take precedence over the (nullity) proceedings before the national court and is not exclusive.

A copy of the decision (in Dutch) can be read here.