Report on the seminar “Infringement by equivalence” held on 4 June 2024 in Eindhoven
Inspired by the industrial heritage surroundings of the old Philips factories the epi seminar on “Infringement by equivalence” was held on 4 June 2024 at the Igluu conference center in Eindhoven. This seminar was a reprise of the seminar held in October 2023 in Munich, but now some other countries were taken to illustrate the differences in the court decision on this issue over Europe. In the morning the current legal landscape on infringement by equivalence in Germany, the UK, Switzerland, Sweden and the Netherlands was presented by Olaf Ungerer, Marco Morbidini, Simon Holzer, Wendela Hårdemark and Bart van Wezenbeek, respectively. In the afternoon this panel of speakers guided by moderator Vera op den Brouw-Sprakel discussed a case where a patent on a wine stopper was faced with five different possibly infringing competitor products. Each of the panelists provided insight how the analysis of infringement by equivalence would be handled by their national courts. Next to the audience in the room, who were asked to actively reflect on the case, the seminar was attended by an online audience spread all over Europe, who could enjoy the presentations and discussions by livestream. The overall outcome was that the differences between the countries influencing the infringement decision were not only caused by different views on the equity interests between the patentee and the alleged infringer, but also on the practice of being allowed to take into account the prosecution history. In that sense, it will be interesting to see how the courts of the UPC will deal with infringement by equivalence.
