NL – Lübbers v. Relco and annular gap injectors

Posted: January 31st, 2012

Lübbers Anlagen und Umwelttechnick GmbH v. Relco Wet & Dry B.V., accelerated patent proceedings before the District Court of The Hague, the Netherlands, 25 January 2012, Case No. 387236 / HA ZA 11-451

On 25 January 2012, the District Court of The Hague ruled in the case brought by Lübbers against Relco. Lübbers acted as the exclusive licensee for EP 1 105 202 (relating to an annular ring injector aimed at cleaning air purification chambers), which patent is owned by Dutch patent holder and licensor Korporam B.V. Lübbers sought an injunction against Relco for patent infringement, but saw the invoked patent partially invalidated instead. Relco attacked the patent on grounds of lack of clarity / insufficiency, lack of novelty and lack of inventive step.

The Court ruled that although lack of clarity arguments under Article 84 EPC are not as such admissible in national proceedings, but that such arguments can indeed lead to invalidation on grounds of insufficiency (Article 83 EPC). Claim 4 is invalidated for that reason.


Relco’s inventive step arguments failed: neither of its suggested closest prior art documents found favour with the Court, which instead accepted the Lübbers’ suggested point of departure, which document explicitly aimed at improving annular ring injector mechanism. No suggested combination of documents was found to provide all the elements of the invention.

The Court saw no need to go into the novelty arguments raised against the patent, since these were sufficiently dealt with by the patentee’s advance notice that it would voluntarily limit the claims of the patents.

Relco also argued non-infringement, adding several entirely new arguments at the hearing. In the accelerated patent proceedings regime, such late arguments are usually dismissed, since all arguments must be brought early on the set dates for filings set in the Court’s time path decision. In this case, the Court judged the arguments allowable, since they were raised only in response to a line of argumentation that Lübbers had introduced in its final written filing in the counterclaim. Based on these grounds, the Court found non-infringement.

Lübbers then belatedly attempted to argue that Relco’s products at least infringed by equivalence, but failed to sufficiently expand upon this idea, leading the Court to dismiss that argument.The Court partially invalidated the patent in suit, found no infringement and ordered Lübbers to pay three quarters of the costs of Relco (the estimated part of the costs relating to the infringement).

Read the decision (in Dutch) here
Head note: Maurits Westerik

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