Proceeding Decision

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.

Validity. Infringement by equivalence. Text for recall letter/publication on website.