In 2002, the Dutch Supreme Court formulated its “renunciation doctrine” (“afstandsleer”) in Van Bentum v Kool , which - in short - means that one may only assumed that part of the protection to which a patent, according to the essence of the invention, gives rise, has been relinquished, if there are good grounds for doing so, in view of the patent specification or, for example, the prosecution history . The Supreme Court has - at the instigation of Advocate General Van Peursem - used its judgement in this case to make it clear that this “renunciation doctrine” is no longer applicable law. Clarity is good for legal certainty, so that is only to be welcomed. However, the extent to which the Supreme Court provides this clarity is, on closer inspection, disappointing. In particular, the “points of view doctrine” as embraced by the Supreme Court in this judgment - in which a wide range of points of view can be used to interpret a claim, without further specifying when which point of view can be used and which weighting factor can be used - gives rise to ambiguities. The question therefore arises whether this doctrine enriches “the state of patent law”, as a patented invention is supposed to enrich “the state of the art”.
|Translated title of the contribution||Resolution v AstraZeneca en Shionogi:: using points of view instead of starting positions, legal certainty becomes a nose of wax|
|Number of pages||7|
|Publication status||Published - 1 Jun 2019|