BIE december 2013, p. 358-364, Toon Huydecoper: "My answer will be based on the assumption that the problem is, that leading European case law puts too much emphasis on construction, closely tied to the patent claims, and thus leaves too little room for a broader construction of patents that disclose an inventive concept which has not been - and indeed could not always be - formulated entirely adequately in the patent claims.
It is of course conceivable to continue on the course which has characterized Dutch case law so far. I would summarize this to the effect that the balance envisaged by Article 69 of the EPC entails that the inventive concept - 'the essence', which, meanwhile, must be found in, or behind, the claim(s) - may definitely form a deciding factor, with the proviso that legal certainty for third parties must be duly taken into account. These third parties may therefore rely on clear restrictions in the patent claims (because, in principle, a lack of clarity works to the detriment of the patentee - and wishing to 'interpret away' clear restrictions is a more pronounced variant of construing unclear text in a way that is advantageous to the patentee).
However, given the emphasis placed on the primacy of the patent claims in case law elsewhere, I believe that the approach whereby - albeit with considerable reservations - the 'essence of the invention' is given a central position as premise and/or perspective, stands little chance of convincing professionals elsewhere, or even of giving them food for thought.
In line with the case law in the 'leading countries' elsewhere, I would therefore choose to adopt primacy of the claims as the starting point. We might then, I believe, have a basis for introducing the approach that a person skilled in the art who reads the claims in the light of the description and drawings and tries to understand them, will be inclined to do so - by which I mean: to understand the claims - taking due account of the inventive concept described in the patent. This does assume, of course, that the patent clearly discloses a particular inventive concept - if that is not the case, and the court is invited to perform a somewhat random search for an inventive concept that could support a braader construction, such reasoning should not be accepted."
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Fair protection
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