Infringement & Freedom To Operate - Food Valley

The Netherlands vs. UK and Germany
UK:
Purposive construction (Catnic)
Improver – 3 step purposive construction test
Does difference between the alleged infringing product and product specified in claim have a material
effect on the way invention works? NO?
Would this have been obvious to skilled man? YES?
Would skilled man nevertheless have understood from language of the claim that the patentee
intended to protect only claimed product? NO?: INFRINGEMENT
House of Lords in Amgen v. TKT:
Improver-questions are not rigid checklist “only guidelines more useful in some cases than others”;
Only one compulsory question: what would skilled man have understood the patentee wanted to
cover with the claim language?
No Prosecution File
No protection “outside the claims” – no doctrine of equivalents
Germany:
Literal infringement: Wortlaut and Wortsinn
Custodiol II tripartite equivalence test
Same technical effect (to a practically relevant extent);
Discoverable for skilled man (at the priority date) “without making an invention” (Bratgeschirr: Overall
Discoverability Test);
Variant is in line with inventive concept;
No Prosecution File