Success for Brahms as Radiometer’s nullity suit dismissed

Medical technology company Brahms GmbH, a subsidiary of US company Thermo Fisher and situated close to Berlin, has been fighting for years with Radiometer, a medical technology manufacturer based in Krefeld on the Dutch-German border, over various patents.

The Californian diagnostic device manufacturer Diazyme and its German distribution partners DiaSys and Orlalab are also parties in the dispute. Now the Federal Patent Court has rejected Radiometer’s nullity suit.

All intellectual property rights concern the rapid diagnosis of the causes of infections. This is of particular importance in intensive care units and emergency rooms, where a quick diagnosis of sepsis, for example, can save lives.

The current dispute concerns the use patent EP 2 301 626, which protects the use of an antibiotic for the treatment of patients with a certain concentration of the biomarker procalcitonin (PCT).

The nullity suit is part of the comprehensive proceedings surrounding a basic patent which has now expired, but for which various use patents still exist. Up to now, however, the judgments have varied greatly depending on the patent.

Different decisions

Georg Rauh

In autumn 2018, the German Federal Court of Justice destroyed the German part of the European patent EP 0 880 702 in the second and final instance (case ID: X ZR 118/16). Brahms had sued Radiometer, Diazyme and DiaSys at the regional courts in Düsseldorf and Munich over this patent.

In response, the defendants filed a nullity suit. The Federal Court of Justice’s decision marked the end of the pending infringement proceedings.

Shortly afterwards, however, the Federal Patent Court partially dismissed a further nullity suit brought by Radiometer and Diazyme. The court upheld Brahms’ EP 2 028 493 to a limited extent (case IDs: 4 Ni 16/17 and 4 NI 22/17).

As a result, the patent holder resumed the parallel infringement suits at the regional courts of Munich and Düsseldorf. The courts had previously suspended proceedings. Furthermore, all parties appealed against the nullity judgment – Brahms against the limitation and the other parties against the upholding of the patent.

Judgments expected in autumn

Last month, the oral hearings on the infringement of EP 2 028 493 took place at the Regional Court Munich. The defendants in one case were the parent company of Diazyme, General Atomics, and its German distributors Diasys and Orlalab. The second case dealt with the infringement suit against Radiometer. The verdicts in both cases are expected in early September 2019.

A hearing will take place on 5 September 2019 for the parallel infringement proceedings against Diazyme. Düsseldorf Regional Court will hear the case (also concerning EP 2 028 493). The parallel nullity proceedings are pending before the Federal Court of Justice.

What is unusual about the current case is that the nullity suit for EP 2 301 626 was not filed in response to an infringement action. The same applies to two further nullity suits against the German part of the use patents EP 2 084 545 and EP 2 293 078, which are still pending before the Federal Patent Court.

Comprehensive advice

Although another patent attorney firm filed the patent in 2008, Vossius has a long-standing relationship with Brahms. The law firm provides comprehensive advice to Brahms in patent disputes. The contact originally came via the Berlin office.

Maiwald regularly represents Radiometer and other companies of the Danaher Group in litigation concerning pharmaceutical and diagnostic patents.

Diazyme relies on Gleiss Lutz in the pending infringement proceedings, supported by the Stuttgart patent law firm Witte Weller. The latter was not involved in the current nullity suit.

For Brahms
Vossius & Partner (Munich): Georg Rauh (lead), Oswin Ridderbusch (patent attorney)

For Radiometer
Maiwald (Munich): Martin Huenges (lead); associate: Julia Mössinger (both patent attorneys)

Federal Patent Court, 3rd Senate
Walter Schramm (presiding judge)