BE – Claim for “guiding surface” is not limited to shape depicted in drawing

Posted: March 6th, 2012

Germeau Carrière v. Core Distribution and Urban Sporting Goods, expedited proceedings on the merits, Liège court of appeal, Belgium, 21 February 2012, case number 2010/RG/1369  

The respondents (Core Distribution and Urban Sporting Goods) are the co-proprietors of a European patent for an “extending ladder and associated manufacturing methods” (EP 1 448 865).  One of the features of the patented ladder is that in contains columns to which rings are coupled with an interior guiding surface for contacting the exterior surfance of another column. The appellant, who was found to infringe the patent at first instance, argued that the claim should be construed to mean that the said guiding surface was flat and that, since its own guiding surface allegedly had a different shape, there could therefore be no infringement.

The appellant found support for its argument in the description (§ 42) and the drawings (figure 7) of the patent specification, which described the embodiment of figure 7 as “[columns] with … shapes including flat surfaces … so as to preclude relative rotation between the columns”. The court of appeal rejected this argument and held that, on proper construction of the claims, figure 7 only depicted one possible embodiment of the invention and that no such limitation could be read into claim 1 or any other claim of the patent. What was claimed was a guiding surface, not a flat guiding surface. The court thereby confirmed the first instance decision.

However, the court reversed the first instance decision to the extent that it held that a court adjudicating a patent claim in expedited proceedings on the merits could not order to the restitution of the costs of the saisie carried out prior to the start of the proceedings. The reason for this being that no damages can be awarded in expedited proceedings. According to the court of appeal, however, these costs do not amount to damages, but to procedural costs, and could therefore be reimbursed to the respondents in expedited proceedings, without needing to start separate genuine proceedings on the merits.

Read the decision (in French) here.

Head note: Philippe de Jong

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