Steurs vs. Zilka: Stay of the proceedings pending EPO opposition
District Court of The Hague, 18 October 2006, HA ZA 05/833. Technisches Büro Steur c.s. versus Zilka c.s.
The Zilka brothers are the owners of a European patent with regard to a “‘Device, , system and method for on-line explosive deslagging”. A third party filed notice of opposition at the EPO. Steur (claimant 1 in this instance) intervened in the opposition.
Steur c.s. claim, in short, (i) suspension of the proceedings pending a final decision from the EPO concerning the opposition, (ii) nullification of the Dutch part of the patent, and (iii) a declaratory judgment of non-infringement for the Netherlands and Germany.
Ex officio the court considers that following the appeal judgement by the European Court of Justice in the matter of Gat and LUK (C-4/03), rendered on 13 July 2006- therefore after closing arguments in this matter – that in view of article 22 sub 4 EEX-Regulation the court has no cross border jurisdiction. It has after all been established that in the present case a legally relevant appeal is made to the invalidity of the patent, in connection to which the German court is exclusively competent to render a judgement as far as Germany is concerned. This also goes according to the court for the declaratory judgment of non-infringement, as far as this concerns Germany.
Moreover, the Dutch side of things is not addressed with regard to content. The court sees, based on article 83 sub 4 ROW 1995, reason to suspend the proceedings pending the opposition procedure.
Moreover, the Dutch side of things is not addressed with regard to content. The court sees, based on article 83 sub 4 Reason for the suspension is that the present proceedings and the opposition procedure deal with the same arguments for nullification, and that these do not seem prospectless beforehand. Steur c.s. even refer to the documents entered in opposition using these same arguments. Had the court not decided to suspend, it could result in different sets of conclusions on the part of the court and the EPO. Such a situation would be inexpedient.
The complaint made by the Zilka Brothers that they as a result of this suspension would for a longer period of time de facto be deprived of patent protection does not outweigh the above-mentioned. In mitigation of this disadvantage and with article 20 Rv in mind, the EPO will receive copy of this decision to ensure accelerated handling of the initiated opposition procedure.
Read the entire judgement here.
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