Dusseldorf LD enters another injunction and discusses product-by-process claims, publication-to-grant damages, laches

The Dusseldorf LD has already granted various injunctions, and the latest came down in Yellow Sphere Innovations v. Knaus Tabbert. The decision discusses some concepts of transcendental importance:

Product-by-process claims are all about the technical properties achieved by a certain process, not about the process itself. That is key to consider in the infringement analysis.

It is a matter of national law whether a patentee is entitled to infringement damages for the period between publication and grant of the underlying application. The UPC does have jurisdiction over such damages, but the question must be addressed, starting with the pleadings, on a country-by-country basis.

The decision doesn’t mention laches, but that would be the closest comparable concept in U.S. law. Like in U.S. patent litigation, the hurdle for that is high. The Dusseldorf LD clarified that the relevant period during which litigation must be brought begins with the identification of the last fact supporting the claim. And then there must be sufficient time for a patentee to develop a solid infringement case.