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High Point SARL v. KPN B.V., Court of Appeal The Hague, The Netherlands, 5 June 2018, Case no. ECLI:NL:GHDHA:2018:1271

High Point is the owner of EP 0 522 772 which relates to a ‘Wireless access telephone-to-telephone network interface architecture’. It has sued KPN for infringement. KPN, in turn, has claimed the invalidation of EP 772.

To overcome the invalidity objections, High Point had submitted claim limitations (auxiliary requests) in appeal. The Court of Appeal decided that the claim limitations (auxiliary requests) submitted by High Point at a late stage in the proceedings, namely after the exchange of written statements, are not admissible based on Dutch civil procedure rules. The Supreme Court subsequently confirmed the decision, deciding that the right to change claims as laid down in Art. 138(3) EPC does stand in the way of procedural rules that serve to concentrate the debate and expedite decision making. The case was referred back to the Court of Appeal for final decision.

In the meantime, High Point had achieved a central limitation of its claims at the EPO, a week before the Supreme Court judgment was handed down. Article 68 EPC dictates that the limitation has retroactive effect. High Point argued that EP 722, as centrally limited, is valid. However, in its decision of 5 June 2018, the Court of Appeal did not accept High Point’s argument, as it violated the rules of due process. The limited claims are virtually identical to the auxiliary requests that had previously not been admitted by the Court of Appeal. Allowing High Point’s argument that the centrally limited claims are valid, would mean that High Point would be able to circumvent the refusal of its auxiliary requests. High Point should have presented its arguments that the claims in limited form are valid at a much earlier stage and it could and should also have requested the central limitation much earlier.

The Court also refers inter alia to the judgment of the UK Court of Appeal in Samsung v Apple ([2014] EWCA Civ 250), in which it was confirmed that the Court was not obliged take into account a central limitation obtained pending infringement and invalidity proceedings if this would amount to abuse of process.

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

Headnote: Jaap Bremer, BarentsKrans