Court of Cassation - 6 February 2019 - NEWMAT v/ NORMALU
Court of Cassation
NEWMAT v/ NORMALU
Infringement by equivalent means
The patent was for a stretch ceiling canvas.
Prior art close to the claimed invention was invoked before the Court of Appeal although it did not fall within the technical field of stretch ceilings. The Court of Appeal dismissed the infringement claim.
The Court of Cassation confirms the absence of infringement by equivalence since on the filing date of the patent application, the function or technical effect of the patented means was already known.
The Court of Cassation recalls that the function of a means is the action of producing, in the application given to it, a "first technical effect".
However, in the present case, according to the Cour de cassation, the function or technical effect of the patented means is disclosed in the prior art and is therefore not new, even if the prior art is part of a different technical field or is incompatible with the technical field of application of the patent in dispute, i.e.e the field of stretch ceilings.
This decision is particularly severe for the patentee and seems to set the bar very high that must be crossed for an infringement by equivalence.
In addition, the Court of Cassation misses the opportunity to involve the person skilled in the art in its analysis, which could have been the beginning of harmonization of the interpretation of equivalence between the different European countries.