[REDACTED] v OrthoApnea & VIVISOL (UPC_CFI_376/2023)

• The claimant, a Belgian orthodontist, is the holder of patent relating to a device for treating nighttime breathing problems. The claimant claimed that the defendants infringed its patent by the development and sale of the attacked embodiment (known as the NOA).
• The defendants rejected the infringement claims, denying both literal infringement and infringement by equivalence. As a secondary and additional defence, they also put forward a Gillette defence. Lastly, the defendants also requested that the previously granted saisie (evidence preservation order) be lifted and the seized products be returned.
• The Brussels LD dismissed the claimant's infringement claim, both on basis of literal infringement and infringement by equivalence.
• In assessing infringement by equivalence, the Brussels LD followed the principles set out by The Hague LD in Plant-e v Arkyne but questioned whether the test used by The Hague LD was the "function-way-result" or the "insubstantial differences" test. As such, the Brussels LD first applied the "function-way-result" test. It concluded that the parts of the NOA device that corresponded to the device as shown in the patent were found to have the function of closing the mouth in a completely different way to the function set out in the patent. Therefore, there was no infringement by equivalence. For completeness the Brussels LD also applied the "insubstantial differences" test and concluded that it did not lead to a different result.
• In view of the court's finding of non-infringement it did not assess the defendants' Gillette defence, but it did lift the previously granted saisie order.

This analysis is based on a machine translation of a decision not available in English.