IEF 7654

Technip vs. Goossens: Copyright on scientific work

Supreme Court of the Netherlands, 24 february 2006, Technip Benelux B.V. vs. Goossens.

Copyright. “Before proceeding with the evaluation of parts 1 and 2 of the appeal, the Supreme Court posits that the pivotal question in this matter is not whether the kinetic scheme itself is to be considered a computer program or “preparatory material”(…) nor whether the kinetic scheme, as a manuscript (…) qualifies for manuscript protection under the Dutch Copyright Act 1912. The pivotal question is whether the kinetic scheme qualifies as a work (“work”) within the meaning of Section 10(1), opening and closing words, of the Dutch Copyright Act 1912: “… and in general any product of literature, science or art, expressed by whatever means and in whatever form”. A requirement is that the product has its individual, original character and bears the stamp of its maker.”

“(...) Where the kinetic scheme is a schematic representation of the production process of ethylene and propylene in the petrochemical industry by means of, for example, a collection of chemical reaction comparisons, and the chemical reaction comparisons incorporated in the scheme are by themselves nothing but a number of objective scientific data which as such cannot be protected by copyright, the Court of Appeal was right to examine whether the selection of these data, with a view to the question of incorporating them – or not – into the kinetic scheme, has its own individual, original character and bears the stamp of its maker.”

Read the entire judgment here (translation made available by Olaf Trojan, Simmons & Simmons).


IEF 7653

Pharmachemie vs. MSD: Proof it!

Haarlem District Court, 23 September 2005, KG ZA 05-495. Pharmachemie versus Merck Sharp & Dohme

Advertising. The foregoing leads to the preliminary opinion that the statements made in point 5.8 are misleading as referred to in 6:194a of the Civil Code and Article 4 of the Medicines Advertising Decree and that they are contrary to the provisions of Article 4.2 of the Code of Conduct on Medicines Advertising.In view of the recent introduction of Pharmachemie's lendronic Acid 10 and 70 PCH on the Dutch market, it is furthermore likely that Pharmachemie will suffer loss due to these misleading statements of MSD. Insofar as Pharmachemie's claim relates to these statements, it will also be awarded.

Read the entire judgment here (translation made available by Marc van wijngaarden, Bird & Bird).


IEF 7652

MSD vs. Teva Pharmaceuticals: the average skilled man’s baggage

The Hague District Court, 25 April 2005, KG ZA 05-354. MSD Overseas Manufacturing versus Teva Pharmaceuticals Europe.

Patents. The requested relief of Merck cannot be allowed, because, as a provisional opinion, there is a realistic chance that the patent will be considered null and void during the proceedings on the merits, so that Merck, on this ground alone, cannot assert any claim against Teva under the supplementary protection certificate referred to above.

In the proceedings at hand Teva, in support of its defence that the patent must fail the inventive step test, invoked new documents, of which it has currently become plausible in preliminary relief proceedings that – different from what was argued by Merck during the oral hearing – they have not been (to a sufficiently knowable degree, at least one that can be considered relevant) discussed during the proceedings at the Board of Appeal. As a provisional opinion, these documents, particularly the publications of Fleisch and Felix, to be more closely indicated hereafter, are in the soon to be indicated context damaging to inventive step.

Read the entire judgment here (translation made available by Marc van Wijngaarden, Bird & Bird).



IEF 7651

Publishers vs. The State: Digital / paper cutting collections and press reproduction exception

Court of the Hague, 2 March 2005, Publishers versus the Kingdom of the Netherlands.

Copyright. The Court orders the State to discontinue, now and in the future, the scanning (including causing others to do so) or any other multiplication and the multiplication and/or publication, whether or not via an internal network, of works protected by copyright, which have been published in the publishers’ newspapers, with the exception of reports that do not carry the maker’s own, personal character and/or personal stamp, as long as no permission from the publishers has been obtained, except insofar as (the production of) paper cutting collections is/are concerned, which are distributed only in the form of paper (therefore not via email, intranet or electronically in any other way), such on penalty of immediately claimable damages of EUR 1,000 per day and per ministry during which any (part of a) ministry continues to fail to comply with this injunction; orders the State to compensate the publishers for the damage they have suffered due to the aforementioned infringement of their copyright in the period from 22 December 2002, to be further assessed by the Court and to be settled in accordance with the law.

Read the judgement here.


IEF 7650

Park-Line B.V. vs. Payway Oy: Parking patents, prohibition all designated countries

District Court The Hague, 30 June 2004, 03/2732. Park-Line B.V. versus. Payway Oy.

Patents. Both in the principal action and in the counterclaim proceedings it must be examined whether the parking system of Park-line does or does not violate EP 039.

“3.14. Both in the system of Park-line and the patented system the function of the parking place code therefore lies in the rate differentiation. The assignment of one code to several individual parking places within a parking area to which the same parking conditions apply, as in the system of Park-line, is not an essentially different measure than the assignment of different unique codes - but still indicating the same rate - to individual parking places within such a parking area. After all, in that way the same result (namely a hardware-free parking system for public areas) is achieved in essentially the same manner (sending a rate-indicating code). In that way the system of Park-line comes within the equivalence scope of EP 039.”

3.15. The reasonable legal certainty for third parties required by article 69 EPC does not necessitate assuming a more limited protective scope of EP 039. After all, every third party will understand that it is not essential to use a unique code for the different parking places within a zone (to which the same parking conditions apply) but that the same code may be used for that group of parking places. That does not detract in any way from the solution given by EP 039 for the problems involved in the existing methods for pay parking in public spaces consisting of the state of the art. In particular the use of one (rate) code for several parking places does not affect the necessary check of payment. After all, in that case checking is also made possible by the unique vehicle code. Furthermore it cannot be concluded in reason from the file of the grant of the patent in any way that the assignment of a unique code to every individual parking place would be of essential interest to (the patentability of) the invention and even less that PayWay had wanted to waive the protection of versions lying within the equivalence scope of the patent.

3.16. From the above it follows that the District Court believes that Park-line infringes EP 039 direct.
 3.17. The District Court believes that the prohibition requested by PayWay for all the designated countries may be granted. After all, at the session of the court Pay Way asserted without contestation that Park-line would also want to expand its activities outside the Netherlands, England and Germany (where it is already active). The threat of a patent infringement is enough to grant the prohibition.

Read the entire judgement here.


IEF 7648

Kazaa vs. Buma Stemra: Giving the opportunity of downloading music is not illegal

Amsterdam Court Of Appeal, 28 March 2002, 1370/01 SKG. KAZAA B.V. versus Vereniging Buma & Stichting Stemra.

Copyright. “Furthermore, the court will point out that KaZaA justly contests the president’s â¨consideration that it must be put first that by giving its users the opportunity of downloading music files by means of its computer program without a license, KaZaA acts contrary to copyright. Insofar as there are acts that are relevant to copyright such acts are performed by those who use the computer program and not by KaZaA. Providing the means for publication or reproduction of copyrighted works is not an act of publication or reproduction in its own right. Also, it is not true, that is for the moment it cannot be assumed to be true, that the KaZaA computer program is exclusively used for downloading copyrighted works. (…) The appeal therefore succeeds.

 Read the entire judgment here (judgment made available by Wouter Pors, Bird & Bird).