epi Equivalence Seminar
On 18 October 2023, about 100 epi members from all over Europe gathered in Munich for a seminar titled ‘Infringement by Equivalence in Major EPC Jurisdictions’. At this seminar, Olaf Ungerer, Sylvain Thivillier, Paolo Rambelli, Claude Quintelier and undersigned highlighted the peculiarities in case law on infringement by equivalency in Germany, France, Italy, Belgium, and the Netherlands, respectively. Moderation of the event was provided by Thomas Pott.
Although infringement by equivalence is covered by Art. 69 EPC and the Protocol to Art. 69, it appeared from the presentations of the speakers that there was little harmonization between these five jurisdictions. This was made more prominent when, in the afternoon, the audience was involved in a discussion of a mock case in which, for a granted patent, 5 different embodiments were shown not to be literally infringing. When the presenters tried to predict how each of their national courts would decide on the infringement by the 5 different embodiments, it appeared that there was no agreement between them. On the contrary, in all of these 5 embodiments, it was found that, in some countries, an embodiment would be deemed to be equivalent, whereas in the other countries this would not be the case.
It was concluded that this outcome meant that there would be a challenging task, in the future, for the UPC to ensure an actual harmonization. It will, however, still take time before such a harmonization will be established. In the meantime, epi is planning to hold further seminars on this topic to keep its members up to date on this subject, possibly including other jurisdictions (and the UPC). If you are interested to attend a follow-up seminar on infringement-by-equivalency, please look out for our seminar/webinar listings and our email notifications.
