Perseverance pays off. This once again became clear earlier this week during opposition proceedings conducted by our Patent Attorney Marcel Kortekaas, on behalf of his client. He did not resign himself to the decision of the European Patent Office (EPO) to uphold a patent that seriously impedes his client. He can now plead his case before the Enlarged Board of Appeal; the EPO's highest judicial body. This is a rare occurrence and Marcel is literally making history with this as the Enlarged Board of Appeal's decision will form the basis for all future patent applications.
Persevering when others would give up
Efforts to overturn someone else's patent always start with opposition proceedings at the EPO and generally also end there - unless you engage a Patent Attorney who perseveres when most others are likely to give up. Thanks to Marcel's research in case law, combined with his technical and legal knowledge, this case is now going to the Enlarged Board of Appeal. This happens only a couple of times a year, because in order to achieve this you need to find a loophole in the other party's patent as well as in patent law. And that is precisely what Marcel and his colleague Thomas Remmerswaal managed to do.
The patent law loophole
The loophole can be found in the way you look at a patent. Marcel argues that you should not just look at the claims – which is what you ultimately want to protect - but also the description. When the Opposition Division - the first authority to hear appeals - failed to do so, Marcel took the matter to the Technical Board of Appeal, the second authority. They found that his position held water. Partly because Marcel was able to show that there is in fact case law from, among others, the court that rules on unitary patents, the UPC Court of Appeal. which states that the description and not just the claims should ALWAYS be looked at. And there you have it; the patent law loophole.
Going to extremes to protect your client's interests
As a result of Marcel's tenacity, the case is due to appear before the Enlarged Board of Appeal later this year. It is their job to rule on the application of European patent law. So, in this case, in relation to the description versus the claims. Going to this body does not mean that Marcel will be vindicated. However it does mean that his perseverance will end up making patent history, as the decision will form the new basis for similar cases. Needless to say we at EP&C are pretty proud of that; a patent attorney who makes history and goes to extremes to protect his clients' interests!
Want to know more details about this case? IPkat wrote an extensive analysis.
