Applera Corporation vs. Stratagene Corporation cs: Cross border injunctions
District Court of The Hague 13th july 2007 Applera Corporation vs. Stratagene Corporation cs:
Patent law. The patent is valid and infringement has not been challenged. No cross border injunction. No injunction on secondary/ indirect infringement. Costs relating to evidentiary attachments are granted even though infringement is not challenged. At the time the attachments were ordered the claimant could reasonably fear a substantial breech defence. Secondary claims are granted in interlocutory proceedings.
Applera has, after not yet fully completing opposition proceedings, a European patent for an installation to follow a polymerase chain reaction (PCR) for nucleic acid amplification reaction at multiple temperature cycles.
Startegene cs offers the MX3000p, Mx3005p and the Mx4000 quantitative PCR systems via their website. Applera takes the view that Stratagene’s systems infringe their patent rights. First of all Applera has levied evidentiary attachment for the Dutch defendants and described the infringing products. Secondly they summoned Stratagene in an interlocutory proceeding so as to demand a ban on direct infringement (and secondary claims).
The primary relief court describes the technical field of the invention extensively before discussing the actual content of the issue.
Startagene’s defence is centred around the premise that there is a real and serious chance that Applera’s patent applications will be struck down once the opposition procedure is continued. Stratagene offer three reasons for this.Violation of article 76 (1) EOV (European Patent treaty); Lack of novelty as regards to Van Otten’s Thesis and D3; a lack of inventiveness also in view of the afore mentioned thesis.
Stratagene cs have taken the view that the patent, which is a derived application from an expansion of the subject matter, compared to the earlier application. This is in breach of article 76 sub section 1 EOV. The appeals chamber ruled on this issue (G1/05). The derived applications can be adjusted during the proceedings and are limited to the subject matter of the original application. The derived applications are validly made even when the expansion of the subject matter as regards to the earlier applications. The primary relief judge ruled that in the light of the decision of the Chamber of appeals that the continued patent opposition will not be automatically struck down in case of breach of article 76 subsection 1 EOV.
The primary relief court does not view Van Otten’s thesis as being novel or a danger to inventiveness.
The interlocutory proceedings are, as far as the provision of evidence is concerned, not the most suitable type of legal proceedings. In view of these facts the primary relief court could do no more than refer to the earlier judgement of the Technical appeals chamber of this point. D30 is not viewed as being a danger to the novelty, as it is not beyond reasonable doubt that the document was published.
All of the above led the primary relief court to conclude that Stratagene cs is in breach of Applera’s patent.
The cross border injunction is denied, as Applera has not made it apparent that the patent has been validated in all of the countries where the injunction is requested. Even less clear was the information concerning the extent of the patent in these countries. At this time the relief court takes the view that only in Holland the deed of partial surrender of a patent has been registered.
The injunction against the indirect breach is also denied because Appelera has insufficiently proven that products provided by Stratagene are suitable and destined for application with the patent.
The costs incurred by Applera with regards to the evidentiary attachments are allowed even though Startagena does not argue infringement. At the time of the attachments Applera had reason to consider a fundamental patent breach defence.
Read the entire judgement here.
