The mere circumstance of a carve-out not sufficient to rule out direct infringement of the second medical indication. Distinction drawn by the Appellate Court in the scope of protection of ‘classic second medical indication’ and ‘sub-group indication’ is incorrect. Direct infringement of Swiss-type claims if: average person skilled in the art will consider that the substance is (also) intended for or suited to the treatment covered by the second medical indication patent, the manufacturer or seller foresees or ought to foresee that the generic drug he manufactures or offers will intentionally be used for that treatment and that he does not take the steps to prevent his product from being dispensed for the patented second medical indication. Indirect infringement of Swiss-type claims possible on the same basis as for a claim in accordance with Article 54(5) EPC: if the manufacturer supplies or offers the drug to persons not entitled to work the invention and where he knows or it is obvious given the circumstances, that the drug is suitable and intended for the patented second medical indication. Explanation concept of ‘means relating to an essential element of the invention’ as specified in section 73(1) DPA 1995: pertains not only an element in the patent claims, let alone in that part of the claims containing a description of how the invention differs from the prior art, the means must be able to serve the concept of the invention, that which the invention is based upon, and must contribute to the realization of the teachings in the patent, and in each individual case the judge must ask himself whether this is the case, which may involve asking whether the contentious means plays such a part in the application of the doctrine in the patent that the ratio behind the existence of the notion of indirect patent infringement is satisfied.
Zoom.in failed to sufficiently demonstrate that meetings its obligations towards MN, would lead to the demise of the company: It can by no means be concluded that an agreement with YouTube, with the retention of the identity and independence of MN, could not be in agreement with the new YouTube policy. Zoom.in was insufficiently able to substantiate that a ‘suspension’ would be justified because MN severely failed to meet its obligations: Zoom.in has brought no clear notice of default to MN and the full take-over of the company management of MN goes much farther than the ‘suspension’ of obligations. Sufficiently likely that the judge in potential proceedings would rule that Zoom.in has no justification to no longer meet its contractual obligations. The claims of Zoom.in in the counterclaim to meet the obligations of the Agreement and the claim to remove a text about non-timely payment on the website of MN cannot be granted: Zoom.in failed to clearly demonstrate in which sense MN has shortcomings and Zoom.in insufficiently substantiated that the text on the website of MN is unlawful.
Dutch Supreme Court: Standardization and slavish imitation - no unnecessary confusion: Under circumstances a need for standardization among the buyers of the products can, however, lead to justification for the imitation of a product that causes confusion. Other considerations for purchase do not affect the justification of the imitation, both in view of the compatibility and the exchangeability. Color and location of the name apparently sufficiently different to prevent a risk of unnecessary confusion