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District Court The Hague 27 July 2016, C/09/485397 / HA-ZA 15-366 (VWS vs. Ventraco et al)

VWS owns a European patent, EP 2 389 415 B1 (“EP 415”), in which a method for rejuvenating a bitumen containing composition (such as asphalt) is claimed. The method according to claim 1 comprises, amongst other features, a distillation residue of cashew nut shell liquid (“CNSL”), which distillation residue consists of a mixture of polymerization products of 3-pentadecenylphenol and 3-pentadecadienylresorcinol in the form of an alkylphenol resin which is liquid at room temperature and being non-reactive. Ventraco is being accused of indirect patent infringement.

One of the defences of Ventraco was that a product manufactured according to the invention as claimed in EP 415, had been sold and delivered to a third party prior to the application of EP 415. Said third party even declared in writing that this product was also used to manufacture new (i.e. recycled) asphalt for the application in new, publicly accessible, constructed highways.

Nevertheless the District Court followed VWS in its arguments that this third party was, indirectly, bound by a collaboration agreement which included a secrecy obligation for this third party. Also the public application of the product itself in the construction of new highways, apart from the discussion whether or not these highways were indeed publicly available, could not lead to a different conclusion on the prior use argument. A person skilled in the art would not, without undue burden, be able to learn the invention according to EP 415 from such a public application.

The District Court ruled that EP 415 is valid and that Ventraco indirectly infringed EP 415, for which reason Ventraco was sentenced to withhold any further indirect infringement as well as to surrender a written specification on the sales and profits made by the indirect infringement.

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

Head note: Eelco Bergsma, TaylorWessing