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NO – EcoLice AS/Sea Lice Research Norway AS v. Sinkaberg-Hansen AS, Bindalslaks AS

16 Jan 2017

The proceedings concerned the validity of the Norwegian patent 330244, owned by Sea Lice Research Norway AS, and to which Ecolice had been granted a license. The patent was directed to a treatment against sea lice which is a major problem in Norwegian aquaculture. More precisely, claim 1 of the patent related to use of sequentially treating the fish topically with known chemical substances, first with either a carbamate or an organophosphate and then subsequently with a pyrethroid or a pyrethrin.

The defendants, Sinkaberg-Hansen AS and Bindalslaks AS, are both fish producers which had treated their fish stocks with chemicals according to the patent. EcoLice initiated infringement proceedings and claimed compensation for the use. The defendants filed a counterclaim for invalidity.

The defendants argued that the patent was invalid for lack of inventive step, lack of technical effect and that the patent was invalid as it was granted contrary to the prohibition against patents on methods for medical treatments, cf. section 1, paragraph 6 of the Norwegian Patent Act. In its judgment 2 June 2015, the Oslo District Court held the patent invalid due to lack of inventive step. EcoLice AS/Sea Lice Research Norway AS appealed to the Borgarting Court of Appeal.

The Court of Appeal, however, agreed with the District Court in that the patent was invalid for lack of inventive step and dismissed the appeal. In its assessment the Court of Appeal highlighted that the economic interest in combating sea lice would give the skilled person incentives to try to combine known chemicals with the aim of achieving the most efficient treatment for sea lice. Thus, since the approved use of the available products implied that an organophosphate had to be used prior to a pyrethroid, the patent was invalid for lack of inventive step. The Court of Appeal also noted that it was irrelevant for the assessment of inventive step whether the skilled person would have been aware of whether the sequential treatment offered a synergetic effect or not, since the method as such was obvious to use for the skilled person.

A copy of the judgment can be found here.

Headnote: Lars Erik Steinkjer, Wikborg Rein Advokatfirma