June 17, 2015 | GUILFORD, ME (U.S.) – On June 3rd, 2015, in the oral hearing before the Board of Appeals of the European Patent Office (EPO), the EPO has issued its final decision regarding Copan’s European Patent EP 1 608 268 B1 (“EP’268”). The Board of Appeals of the EPO confirmed that Copan’s EP’268 is only valid in a scope which is substantially narrower than the claim set as originally granted(1).
This decision marks the EPO’s final and binding decision on the validity and the narrowed down scope of EP’268.
In the aftermath of this decision, Copan is now bound to the scope of EP’268, which is substantially narrower than originally claimed and can no longer be broadened.
Most importantly, claim 1 of EP’268 contains, amongst others, the following features (emphasis added):
- said fiber covers said tip in the form of a layer having uniform thickness
- deposited by flocking in an ordered arrangement of the fiber normal to the surface of the tip of the rod.
Puritan’s HydraFlock® and PurFlock Ultra® flocked swab products are flocked differently and do not have Copan’s claimed fiber arrangement. “We are pleased to confirm that our flocked specimen collection devices do not infringe on the recent news of Copan's final patent announcement,” said Timothy Templet, Puritan’s EVP of Global Sales. “With regard to the EPO's recent decision, we are more convinced than ever that Puritan's advanced flocked swab technology does not infringe Copan's EP'268 and provides customers with cutting edge technology in the field of flocked swabs".
As already reported in one of our press releases in 2014, this was unambiguously made clear by statements of the District Court Düsseldorf in an oral hearing on June 24, 2014 (case no. 4b O 176/12). The Düsseldorf Court is often considered the most important European court for the enforcement of patent rights.
In this case, Copan had asserted German Utility Model(2) DE 20 2004 021 787 U1 (“DE’787”) before the Düsseldorf Court.
As both EP’268 and DE’787 contain these narrow features because both rights relate to the same invention and Copan is now bound to the final decision of the Board of Appeals of the EPO, it can be concluded that Puritan’s HydraFlock® and PurFlock Ultra® flocked swabs are also outside the scope of Copan’s European Patent.
Since all of Copan’s German Utility Models relating to flocked swabs(3) have expired at the end of March 2014 and are irrelevant for sales in Germany from that date forward, Puritan’s German customers have freedom to operate.
Puritan Medical Products Co, LLC is North America’s largest manufacturer of single-use medical and diagnostics products. All products are manufactured at their Guilford, ME, U.S. facility, which includes custom media manufacturing and compounding capability to meet a multitude of customer needs.
For More Information Contact:
Timothy Templet, Executive VP of Global Sales
(1) EP’268 was challenged in Opposition Proceedings at the European Patent Office. The Opposition Division significantly narrowed the scope of EP’268 from what had originally been granted. The decision of the Board of Appeals ends the entire proceedings before the EPO.
(2) German utility models can provide rights similar to patent rights except legal proceedings may begin before a patent office examiner ever looks at the substance of the utility model for validity. That is what happened here.
(3) DE 202004021787 U1; DE 202004021907; DE 202004021908 U1; U1DE 202004021930 U1; DE 202004021932 U1