Sufficiency of disclosure finally on the Dutch radar: District Court The Hague 19 May 2010
(8 juli 2010)
In a recent case between Novozymes and DSM the District Court of the Hague passed a very interesting and well-motivated decision on the ground of insufficient disclosure (Article 83 EPC). We hope that this judgment heralds the march of the insufficient disclosure ground under Article 83 EPC, since it is in our view the most important pillar for keeping the patent system in balance. Modern thinking on the rationale for a patent system sees a patent as a contract between the inventor and society at large.
This was well expressed in a report to the French Chamber of Deputies in the debates preceding adoption of the French Patent Law of 1844:
"Every useful discovery is, in to Kant's words 'the presentation of a service rendered to Society'. It is, therefore, just that he who has rendered this service should be compensated by Society that received it. This is an equitable result, a veritable contract or exchange that operates between the authors of a new discovery and Society. The former supply the noble products of their intelligence and Society grants to them in return the advantages of an exclusive exploitation of their discovery for a limited period".
It goes without saying that such a contract is worth nothing to society if the inventor does fails to fulfill its contractual obligation to clearly disclose to society what the technical teaching of his claimed invention is and how it is put into effect accordingly. To maintain the balance of the patent system and to provide society with means to annul the contract with the inventor, Article 83 EPC stipulates that a European patent must disclose the invention in a manner sufficiently clear and complete for it to be carried out by an average person skilled in the art.
In order to meet the requirements of Article 83 EPC, a European patent application must contain sufficient information to allow the skilled person in the art, using common general knowledge, to understand the technical teaching and to enable him to make and use the claimed invention accordingly. The disclosure of the invention must therefore be reproducible without undue burden. An insufficiently clear and complete disclosure of the invention is a ground for revocation in opposition proceedings at the EPO and it is also a nullity ground under Dutch patent law.
In this contribution we will go deeper into the ruling of the District Court in the case between Novozymes and DSM and place this decision into a European context.
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