Posted: October 11th, 2022
Tinnus Enterprises LLC and Zuru Inc. v. [x] International, Court of Appeal The Hague, The Netherlands, 20 September 2022, Case no. ECLI:NL:GHDHA:2022:1802
Tinnus holds EP 3 005 948 B1 (hereinafter: EP 948 or the patent). EP 948, entitled ‘Apparatus, system and method for filling containers with fluids’ is licensed to Zuru which markets a toy product with the brand name ‘Bunch O Balloons’ that can be used to fill multiple water balloons at once.
Tinnus and Zuru acuse [x] International of patent infringement. By judgment of 9 December 2020, the court in first instance annulled the Dutch part of EP 948 due to a lack of inventive step. The Court of Appeal rules otherwise. After a thorough review of the prior art, the patent is deemed valid. However, accoring to the Court of Appeal [x] International does not infringe.
Claim 1 of EP 948 reads:
1. An apparatus comprising:
a housing (12) comprising an opening at a first end (A) and a plurality of holes (26) at a second end (B); and
a plurality of hollow tubes (16), wherein each hollow tube (16) is attached to a respective hole of said plurality of holes (26)
On literal infringement, the Court of Appeal rejects Tinnus et al.’s argument that the ends of the tubes from [x]’s product form the multiple holes on the second side of the housing, as claim 1 makes an explicit distinction between the housing and the tubes.
“With a product in which the housing and tubes are clearly separable parts, such as [defendant’s] water balloon filler, the average skilled person will not perceive the ends of the tubes as holes on a second side of the housing. The fact that the ends of the tubes have been fused together to form a unity does not change that. They then remain ends of the tubes instead of holes on one side of the housing. Tinnus et al. has also not argued that the embodiments described and shown in the patent support its advocated explanation.”
In the opinion of the Court of Appeal, the appeal to equivalence cannot succeed either.
“As this court held in the pemetrexed judgment one of the requirements for the success of an equivalence claim is that a reasonable degree of legal certainty for third parties is assured. That requirement is not met in this case. The fact that wording is used in the patent claims that does not literally include equivalents is an important circumstance in the context of the assessment of legal certainty. In view of the fact that Article 69 EPC presupposes that the scope of protection of a European patent is determined by the claims, third parties may, in principle, rely on the text of the claims, interpreted in the light of the description and drawings, and the lack of clarity created by the wording of the claims in principle works to the detriment of the patent proprietor.”