EPLAW PATENT BLOG

FR – Institut Pasteur v. Chiron Healthcare & Novartis / Cour de cassation

Posted: March 30th, 2011

Institut Pasteur v. Chiron Healthcare & Novartis Vaccines & Diagnostics, French Cour de cassation, 23 November 2010, Case No. 1194 F-D, with thanks to Pierre Véron, Véron & Associés, for sending in the judgment, summary and translation in English

The French Cour de cassation gives here its first decision in a case for infringement of a molecular biology patent (European patent No. 178 978 relating to “cloned DNA sequences, hybridizable with genomic RNA of the LAV” covering a method for detecting HIV).

It rejects the appeal on points of law lodged by claimant Institut Pasteur against a judgment of the Cour d’appel of Paris, 4 March 2009 available here which dismissed the case.

The judgment confirms how Article 69 EPC should be applied to determine the scope of a patent (in the present case, the court does not admit that, after having narrowed the scope of its claims during the opposition procedure to circumvent prior art, the claimant tries and recapture the initial scope during the infringement proceedings).

It also contains a discussion on infringement by equivalence, according to the French theory whereby “infringement by equivalence presupposes that the patented mean does fulfil a new function” the court decides that the patented mean at issue did not fulfil any new function.

Read the decision (in French) here.
Read the decision (in English) here.

Read the previous post here.

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