An overview of the ruling of Philips’ EFM+ (DVD) Patent in the Greek Supreme Court.

Summary

In its decision no 1589/2017m the Greek Supreme Court upheld the appeal brought by Greek company DPH against the Dutch company P. The Supreme Court held that the Court of Appeals’ decision, which had upheld P’s lawsuit against DPH for breach of P’s essential patents, was wrong in finding that there were sufficient reasons for granting patent protection to P’s disputed patents under the applicable rule of Greek law setting the conditions for granting patent protection.

Facts

DPH had raised an objection of nullity due to the lack/nonexistence of the substantive conditions for the legal protection of P’s patents against the two disputed patents, namely lack of novelty and inventiveness.

The Court of Appeals rejected this objection holding that “the ‘EFM+ method,’ described and patented by the two disputed patents, constitutes an improvement of the already existing ‘EFM method’ used in CDs, and constitutes an invention, being new at the time of submission of the relevant applications in relation to the then-known state of the art. As a consequence, the objection of nullity of the disputed patents, as well as the relevant grounds of appeal, must be rejected as factually unfounded....”

The Greek Supreme Court held that, by its above judgment, the Court of Appeals breached a substantive rule of law, as the decision did not contain sufficient reasoning about the existence of the conditions of the novelty and inventiveness required by law, thus making it impossible for the Supreme Court to check whether the rejection of DPH’s objections of nullity was justified or not.

In fact, the Greek Supreme Court found the reasoning of the Court of Appeals’ decision insufficient because “1) it accepts that the protected by the disputed patents invention is new without simultaneously accepting that it constitutes a remarkable/notable improvement ‘of the already existing EFM method’ and not only a simple improvement, which, however, is not sufficient according to the law”; 2) it does not determine, with a detailed reference to the method’s elements and the practical improvements it brings, how the preexisting EFM method was improved by the new EFM+ method; and 3) it does not clarify whether the disputed EFM+ method has an inventive step, in other words, whether it exceeds technologically regular progress and whether it constitutes an inventive step going beyond what is ‘expected’ use by an average expert.”

Conclusion

The Greek Supreme Court accepted, in full, one of the grounds of appeal brought by DPH and referred the case back to the Court of Appeals. This is a decision of paramount importance since an eventual definite recognition of the nullity of the disputed patents would, due to the fact of the patent being an administrative act, overturn the presumption of legality of the disputed patents erga omnes entailing self-evident consequences for pending trials, claims etc., as expressly stipulated in the grounds of reasoning of this very important decision of the Supreme Court.

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Mr. Kriton Metaxopoulos has been practicing law since 1986 and today is the managing partner of A&K Metaxopoulos & Partners Law Firm. He specializes in all areas of intellectual property law, EEC law, and has a widely known experience in litigation and arbitration matters, and particularly in international white-collar crime.