The Brussels Local Division of the Unified Patent Court (UPC) recently issued a decision on patent infringement and the doctrine of equivalence. The case confirmed that infringement is assessed in two stages: first, the court examines whether there is literal infringement. If not, the next step is to determine whether the accused product is technically equivalent to the patented invention.
In its reasoning, the court referenced the Plant-E case from the The Hague Local Division. It did not take a stance on which test should be applied, the function-way-result test, or the insubstantial differences test. What was clear, is that all these tests start with the same fundamental requirement: technical equivalence. The Brussels court found that this requirement was not met, which meant there was no infringement by equivalence in this case.
The challenge remains in defining the right test for equivalence. It will be interesting to see how future UPC decisions handle this issue. In the meantime, if a competing product is available on the market, it’s always a good idea to check with your patent attorney about your options.
