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Koninklijke Philips N.V. v. Wiko SAS Dutch Supreme Court, the Netherlands, 25 February 2022, Case No. ECLI:NL:HR:2022:163

Philips holds various UMTS patents, amongst which EP ‘659. In first instance, Philips was unsuccessful in its injunction proceedings against Wiko, as the Court denied the infringement claim and revoked the Patent based on Wiko’ counterclaim as several claims of EP 659 were deemed to lack novelty and inventive step. On appeal, the Court of Appeal confirmed the first instance decision.

The Supreme Court now confirms the Court of Appeal decision.

“In order to assess the inventive step of the patent according to Auxiliary Request II, the Court of Appeal followed the problem solution approach (PSA), as described in the Guidelines for Examination of the European Patent Office (EPO) and applied by the Boards of Appeal of the EPO. The appeal in cassation is also based on the application of the PSA. In applying the PSA, the objective technical problem is established by the technical effect as determined by the distinguishing features which become apparent by a comparison between the  claimed invention and the closest prior art. Distinguishing features that do not contribute at all to the technical character of the invention – neither individually nor in combination with other distinguishing features  – are not taken into account in the inventive step assessment. The problem mentioned in the patent application is used as a starting point, but can be reformulated if necessary.”

The Supreme Court refers to the above judgment in the Philips v. Asustek cassation appeal and rules that for the reasons given in ECLI:NL:HR:2022:163, Philips’ appeal fails.  See the ECLI:NL:HR:2022:295 judgment here.

The decision (in Dutch) can be read here.