Silimed sucessfully claims invention for breast implant technology

In an entitlement action concerning a patent belonging to the German breast implant manufacturer Polytech, competitor Silimed has now been successful. Frankfurt Higher Regional Court ruled that the technology was developed by the Brazilian plaintiff. In doing so, it overturned a previous decision by the same senate.

 

The two parties have been in dispute for years over EP 2 581 193, which protects a process for manufacturing implants. In 2011, Polytech registered the basic patent but Silimed claims to be the inventor of this technology and filed an entitlement action in 2017.

 

The Brazilian company accuses the German competitor — until 2008 their distribution partner in Germany — of using information about the technology that it provided for certification with the CE mark when it entered the European market. The certification is a prerequisite for marketing certain products in the EU and the European Free Trade Association (EFTA).

 

Frankfurt Higher Regional Court sided with the plaintiff and awarded the patent-in-suit to Silimed. Polytech must therefore transfer all national parts of EP 193 to its Brazilian competitor (case ID: 6 U 79/19).

 

The Higher Regional Court ruled out a further appeal. However, Polytech can still appeal against the denial of leave to appeal to the Federal Court of Justice.

 

 

Initially, it did not seem Silimed would be successful with its entitlement action. Both Frankfurt Regional Court and the Higher Regional Court originally dismissed the suit. The plaintiff then appealed to the Federal Court of Justice.

 

In the course of the entitlement action, Silimed had sought technical documents from Polytech. The plaintiff hoped these documents would prove that Silimed invented the original technology. The Higher Regional Court Frankfurt denied the plaintiff’s request that Polytech provide technical documents.

 

Then, in September 2022, the Federal Court of Justice reversed the decision of the Frankfurt court. The judges criticised the previous instances for not having sufficiently examined the plaintiff’s claims to the invention. At the same time, they addressed the question of defendant Polytech’s obligation to hand over documents.

 

In principle, the Federal Court of Justice confirmed that the protection of trade secrets is an important factor. However, the Higher Regional Court Frankfurt should also have considered the interests of the plaintiff.

 

 

The Federal Court of Justice referred the case back to the Higher Regional Court Frankfurt for a new hearing. This time, the court ordered Polytech to produce the document in question.

 

The 6th Senate of the Higher Regional Court Frankfurt under presiding Judge Arne Hasse has now come to the conclusion that Silimed is the inventor of the technology. It ordered Polytech to assign EP 193, which is valid in a total of 18 jurisdictions, to Silimed. The court also ordered Polytech to provide information on the use of the process protected by the patent since November 2015. According to the ruling, Polytech must compensate the plaintiff for all damages that Silimed has suffered and will suffer as a result of the unauthorised patent application.

 

Following the transfer of the patent to Silimed, it is possible that Polytech’s products now potentially infringe EP 193. However, this question would have to be clarified in new infringement proceedings.

 

 

In 2022, the Brazilian company filed a further entitlement action over Polytech’s divisional patent EP 3 002 101 at the Munich Regional Court (case ID: 7 O 6695/22). The court has scheduled an oral hearing for the end of January 2025.

 

The EPO gave the green light for granting EP 101, which covers further aspects of the technology, in March 2022. However, Silimed filed an objection and the EPO suspended the granting of the patent in view of the entitlement action in Munich.