Key takeaways
The four-step equivalence test applied by LD The Hague forms a coherent whole suitable for examining patent infringement by equivalence.
1.Technical equivalence
Does the variation solve (essentially) the same problem that the patented invention solves and performs (essentially) the same function in this context?
2. Fair protection for the patentee
Is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee: in view of his contribution to the art and taking into account the question whether it is obvious to the skilled person from the patent publication how to apply the equivalent element (at the time of infringement)?
3. Reasonable legal certainty for third parties
Does the skilled person understand from the patent that the scope of the invention is broader than what is claimed literally? Is there, in the eyes of the skilled person, a good reason to limit the scope of protection of the claim to a device/method as claimed literally?
4. Is the allegedly infringing product novel and inventive over the prior art? (i.e. no successful Gillette/Formstein defence)
Technical equivalence
Technical equivalence requires demonstrating each substituted feature’s specific function in achieving the objective of the patent and explaining why the variation essentially performs the same function, not merely arguing that the patent’s objective tast is met.
Obviousness
A complete redesign of the claimed device generally negates obviousness of applying the equivalent element for the skilled person.
Division
LD Düsseldorf
UPC number
UPC_CFI_807/2024 UPC_CFI_334/2025
Type of proceedings
Infringement action, counterclaim for revocation
Parties
Claimant: Wonderland Nurserygoods Co., Ltd.
Defendants: Cybex GmbH, Cybex Retail GmbH, Columbus Trading-Partners GmbH & Co. KG
Patent(s)
EP 1 905 615
Body of legislation / Rules
Art. 69 EPC, Art. 54(1) EPC, Art. 56 EPC, Art. 123(2) EPC, Art. 138(1)(c) EPC, Art. 32(1) UPCA
