RECENT DANISH PATENT CASE HIGHLIGHTS THE IMPORTANCE OF THOROUGHLY OPPOSING EACH PATENTABILItY REQUIREMENT AND GATHERING SUFFICIENT EVIDENCE, WHEN CLAIMING PATENT INVALIDITY
Global Gravity ApS held two patents for transport devices and packaging for prolonged tubes used in the oil drilling industry. Global Gravity’s main product – TubeLock – was manufactured in accordance with the two patents.
The alleged infringer Enelift ApS produced a similar product to TubeLock, called HingeLok, which Global Gravity claimed infringed both patents. On the other hand, Enelift claimed that the patents were invalid and that, even if they were valid, Enelift’s products did not infringe.
In the original counterclaims put forward by Enelift, it was only claimed that one of the two patents was invalid. The court could therefore not render a decision on the invalidity of the other patent, and any evidence regarding the invalidity of this patent, mainly due to lack of novelty, was not taken into account.
Enelift’s arguments based on the doctrine of equivalence were also precluded as they were not presented in due time.
As the patents had already been granted by the Danish Patent and Trademark Office, there was a presumption of validity. In Danish patent case law this presumption can only be disproven by strong evidence supporting a lack of novelty or a court appointed expert opinion which proves lack of inventiveness. Neither were presented by Enelift.
The Danish Maritime and Commercial High Court therefore upheld the patents. For one of the patents this was simply due to the counterclaim for invalidity not being presented in due time, and for the second patent the burden of proof for patent invalidity was not met.
The court concluded that Enelift infringed both patents and an order was issued barring Enelift from producing, selling, or using the infringing products.
The decision can be found here.
Our comment
The decision showcases the importance of gathering sufficient evidence to back a patent invalidity claim. It is crucial to request a court appointed expert opinion to disprove the presumption of validity of an already registered patent. Secondly, it is always imperative to heed the procedural deadlines to avoid preclusion.