Protecting the essence


Michiel Rijsdijk

The Court of Appeal of The Hague passed final judgment on October 6, 2009 in the patent case between Zilka and Rüegg, more than five years after the appeal proceedings were instituted.

The proceedings took so long partly because the Court of Appeal gave the parties the opportunity to present their views on another judgment, passed by the Supreme Court in the case of Lely v. Delaval.

In that judgment, the Supreme Court presented its views on the interpretation of Article 69 of the European Patent Convention (EPC) and on the manner in which the Protocol on the Interpretation of Article 69 EPC is applied in the Netherlands. It requires the determination of the essence of an invention in order to establish the extent of protection conferred on an invention.

The protocol says that the extent of protection is not defined by the literal meaning of the wording. Nor are the claims a guideline as to what is considered from the description and drawings. The extent is a position between these extremes.

essence, invention, patent protection