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HTW Infiltratietechniek B.V. v. Permavoid Limited, Court of Appeal of the Hague, the Netherlands, 27 December 2016, Case number C/09/456139 / HA ZA 13-1362

Permavoid is the holder of European patent EP 1 311 727 B1 for ‘a pavement with structural module’. All claims of EP ‘727 are directed to a ‘vehicular trafficked pavement structure’. HTW markets a product under the name ‘Variobox’. In first instance the District Court of The Hague ruled that HTW’s ‘Variobox’ product infringed the Dutch part of EP ‘727 and granted an injunction. HTW’s invalidity counterclaim was dismissed.

In the appeal proceedings the question of infringement is again assessed by the Court of Appeal in full.

The claims of EP ‘727 were originally directed to ‘a sub-base layer for use in construction’ which according to the description can be used under any type of surface, permeable or impermeable, porous or non-porous, and in both trafficked and non-trafficked situations. During prosecution Permavoid had amended the claims to a ‘vehicular trafficked pavement structure’. According to the Court of Appeal Permavoid had thus abandoned patent protection for any structure other than vehicular trafficked pavement structures.

Further, during prosecution Permavoid had explicitly mentioned that the definition of ‘pavement’ did not cover a ‘footway’. The Court of Appeal thus found that a pavement that is not intended for use by vehicles cannot be considered as a ‘vehicular trafficked pavement structure’ according to the claims. However, a pavement of which it may be expected that it will be used by vehicles is found to be covered by the claims of EP ‘727.

What follows is a factual assessment of the evidence filed by Permavoid in order to establish whether or not Permavoid has sufficiently proven that HTW has offered ‘Variobox’ products intended to be used by vehicles for driving or of which it could have been expected that they would be used as such.

After assessing all evidence on file the Court of Appeal finds that there is insufficient evidence on file to conclude that HTW has offered a ‘vehicular trafficked pavement structure’ according to the claims of EP ‘727. The Court of Appeal therefore rules that EP ‘727 is not infringed and overturns the first instance decision.

A copy of the judgment can be found here at .

Headnote: Mattie de Koning, Simmons & Simmons LLP