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Press release of COHAUSZ & FLORACK
04.04.2018 / Gottfried Schüll

Harmonizing case law on the doctrine of equivalence across Europe

Important decisions of the supreme courts of Germany, Great Britain and Switzerland

Duesseldorf, 05.04.2018 – The supreme courts of Germany, Great Britain and Switzerland have harmonized their case law on patent infringement and now conform on a European level. Through these decisions, an inventor is now granted uniform protection even in cases of a so-called "equivalent" patent infringement, i.e. the use of an invention in a variant form not literally claimed by the inventor.

This was based on a dispute between a pharmaceutical company and a generic drug company over a European patent regarding the use of an active ingredient to combat tumors. The supreme courts of Germany, Great Britain and Switzerland have reached an agreement on rules for determining when equivalent means for achieving a technical effect, and thus patent infringement under the doctrine of equivalence, exists.

There was already broad agreement on "literal" patent infringement due to harmonized laws at the EU level, however the question of "equivalent" patent infringement has relied more on the case law of the respective countries. The British ruling in particular, represents a radical departure from the principles that have governed English courts’ rulings on patent cases in the past. “The now harmonized handling of both elements paves the way for harmonized case law on patent infringement at the European level,” says Gottfried Schüll, patent attorney and partner at Cohausz & Florack.



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