EPLAW PATENT BLOG

NL – CDVI v. Impro / Appeal

Posted: September 24th, 2020

CDVI v. Impro, Court of Appeal of The Hague, the Netherlands, 23 June 2020, ECLI:NL:GHDHA:2020:1622

Facts

Construction Diffusion Vente Internationale SA (“CDVI”) is a global supplier of access systems and electronic locks. Access & Beyond B.V., formerly Impro Technologies Europe B.V. (“Impro”), is a distributor of Impro branded products such as security equipment and systems for access control and time- and attendance registration. CDVI is the proprietor of EP 1 245 006 (“EP 006”) titled Electronic Key Read and sues Impro for infringement on its patent. In the first instance, the District Court accepted with Impro’s nullity defense and held that EP 006 is invalid due to lack of inventive step. Consequently, the claims of CDVI were dismissed. On appeal, CDVI argues the setting aside of the District Court’s judgment.

Assessment

In assessing inventive step, the Court of Appeal uses – in accordance with how the parties argued the case – the problem-solution approach as developed by the Boards of Appeal of the European Patent Office. As to the first step, the Court established that the closest prior art is an electronic key reader which is actually depicted as a figure in the patent in question. The distinguishing feature between this device and the device according to claim 1 of EP 006 is that the metal housing is not provided with four slots on its front side, but with one slot extending from one of the edges of the housing. The technical effect of this distinguishing feature is to increase the required reading distance between the card reader and the card. Secondly, the objective technical problem: the provision of a reading device with a metal protective housing, which is capable of reading an electronic key at a greater distance from the reading device.

CDVI had argued that “without impairing the protective function of the housing” should be added to the objective technical problem, but the Court of Appeal – just like Impro and the District Court – disagreed. After all, it cannot be deduced from the description that maintaining the protective function of the metal housing is part of the problem to be solved.

Finally, the Court of Appeal decided on whether the solution claimed by the patent is obvious to the person skilled in the art on the basis of the closest prior art and the objective technical problem. In the prior art, more specifically the Feynman Lectures, the experiment of Von Waltenhofen and in Tipler, the occurrence and counteracting of the Eddy currents (electronic currents) are described. This prior art also describe how these Eddy currents are counteracted by making slots from the edge of the metal plate. This information is relevant to the problem that the average person skilled in the art should solve and is part of the general knowledge of average skilled person in the field relevant to electronic card readers. The Court of Appeal decides that the average person skilled in the art would arrive at the solution according to claim 1 applying his general professional knowledge in combination with the known reading device as show in figure 1 of EP 006. This does not involve an inventive step, which also applies to the auxiliary request made by the patentee.

All in all, this leads to the conclusion that claim 1 lacks inventive step on the basis of the electronic reading device as shown in figure 1 of EP 006 in combination with the general professional knowledge of the average skilled person. After all, the device of the reader according to EP 006 is an obvious solution to the objective technical problem. The judgment under appeal is therefore upheld.

The full judgment (in Dutch) can be read here.

Headnote: Jeroen Boelens, NautaDutilh

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