Ferring International Center S.A. v. Medac Gesellschaft für klinische Spezialpräparate GMbH and Gebro Pharma GmbH, Medac Gesellschaft für klinische Spezialpräparate GMbH v. Ferring International Center S.A, Svea Court of Appeal, Sweden, 28 January 2013, Docket No. T 3508-11

On appeal of a District Court of Stockholm judgment in joint infringement and invalidity proceedings previously reported on the EPLAW Patent Blog (read that decision here), the Svea Court of Appeal confirmed the District Court’s judgment regarding the issue of invalidity and declared Ferring’s Swedish patent invalid. Similar to the District Court’s assessment, the Svea Court of Appeal found that the patent met the requirement of novelty but declared the patent invalid due to lack of inventive step.

Since the patent was found to be invalid, the Svea Court of Appeal concluded that Medac’s actions did not constitute infringement (not of the patent claims as granted, nor of the revised patent claims after the requested limitations). The District Court had, awaiting the judgment of the Court of Appeal, assessed whether the disputed patent had been infringed based on the hypothetical assumption that the patent was valid. The Court of Appeal therefore declared that the assessment of the remaining issues (in the infringement case that had been stayed) shall proceed as if the patent has not been infringed by Medac.

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Interesting to note, in regard to the requirement of novelty, is that the Court of Appeal, with references to case law from the EPO (T 254/98), considered that public use by a third party may be a reason to apply a lower standard of proof (that is, the usual standard of proof in civil cases), instead of the particularly strict standard of proof otherwise applied in regard to public use. The Court of Appeal also confirmed that a prior art document is considered harmful to novelty only if it clearly and unequivocally reveals the object of the invention. It was pointed out that in the assessment of whether a document is harmful to novelty it is not allowed to combine this with other documents.

Following this judgment from the Svea Court of Appeal, the parties agreed to the infringement case that had been stayed by the District Court of Stockholm to be dismissed.

Read the Svea Court of Appeal judgment (in Swedish) here.

Head note: Erik Ficks