2024-11-22 - LD The Hague - Arkyne Technologies S.L. v. Plant-e Knowledge B.V.

1.The patent is valid and infringed by equivalence. 2.The scope of protection in the case of infringement is assessed in two steps, applying Art. 69 EPC and the Protocol. The first step evaluates ‘literal’ infringement of the features of the patent in view of the claim construction is evaluated. In a second step, if the patent is not judged to have been literally infringed, equivalence is assessed. 3.The test applied to the assessment of infringement by equivalence is based on the case law in various national jurisdictions, as proposed by both parties in this case. This entails that a variation is equivalent to an element specified in the claim if the following four questions are answered in the affirmative. 1)Technical equivalence: does the variation solve (essentially) the same problem that the patented invention solves and perform (essentially) the same function in this context? 2)Fair protection for patentee: Is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee? 3)Reasonable legal certainty for third parties: does the skilled person understand from the patent that the scope of the invention is broader than what is claimed literally? 4)Is the allegedly infringing product novel and inventive over the prior art? 4.The court can order a specific wording for a letter to be sent to customers or to be published on the website of the infringer based on Art. 64 UPCA and Union law.

The Hague Local Division gave the first full Unified Patent Court framework for infringement by equivalence and applied it to hold a plant-based microbial fuel cell patent infringed. Scope of protection is assessed in two steps under Art. 69 EPC and its Protocol: literal infringement first, and only if that fails, equivalence. The equivalence test, taken from the practice of several national jurisdictions as both parties proposed, asks four questions — technical equivalence, fair protection for the patentee, reasonable legal certainty for third parties, and whether the accused embodiment would itself have been novel and inventive, which is the Gillette or Formstein defence. The accused panel places the plant in an upper compartment rather than in the anode compartment, but experiments showed organic material passing to the anode below, so the plant performs the same function in the same way and the variation is equivalent. A fourth headnote holds that the Court may prescribe the exact wording of a recall letter and of a website notice, reading Art. 64 UPCA in the light of Art. 10 of the Enforcement Directive and of the duty under Art. 20 UPCA to apply Union law in its entirety.