High Point v KPN: Central limitation of SEP can be contrary to due process of law

On 14 February 2020 the Supreme Court rendered a final judgment in the case of High Point v KPN, ECLI:NL:HR:2020:258. The Supreme Court upheld the Court of Appeal’s judgment that the central limitation by High Point of its standard essential patent could not affect the outcome of the case in appeal, as such would have been contrary to the principle of due process of law. The Court of Appeal was therefore right not to consider the patent in amended form.

This judgment already concerns the second judgment of the Supreme Court in the proceedings between High Point and KPN. The first writ of summons dates all the way back to 30 October 2009, on which day High Point SARL (High Point) first brought this case for infringement of its standard essential patent EP 0 522 772 (EP '772) against Dutch telecom provider KPN B.V. (KPN).

With its judgment of 15 September 2010, the District Court of The Hague revoked EP ‘772 due to added matter. In appeal, after the first and only round of written statements – but before the oral hearing – High Point tried limiting its patent through a number of auxiliary requests. KPN objected against the admissibility of High Point’s auxiliary requests in light of the principle of due process of law. It follows from settled Dutch case law that amendments of claims in legal proceedings in appeal (not just patent cases, but all kinds of cases), should be done no later than with the first written statement of a party in appeal. Consequently, High Point’s auxiliary requests were found inadmissible.

In the first proceedings in cassation, the Supreme Court upheld the inadmissibility of the auxiliary requests. With reference to judgments in other Member States to the European Patent Convention (EPC), the Supreme Court explained that article 138 (3) EPC remains subject to national procedural rules. Hence, the auxiliary could be found inadmissible indeed.

Further to this judgment of the Supreme Court, the case was referred back to the Court of Appeal for a final judgment, where High Point tried limiting its claims again, this time through a central limitation at the European Patent Office (EPO). According to High Point, a central limitation would affect the national proceedings, as the (broader) patent invoked no longer existed. The Court of Appeal also dismissed these arguments. According to the Court of Appeal, the central limitation was merely meant to circumvent the court’s dismissal of the auxiliary requests and was therefore contrary to the principles of due process as well.

With its second judgment in cassation of 14 February 2020, the Supreme Court upheld that judgment too. According to the Supreme Court, High Point’s reference to the central limitation should be interpreted as a new circumstance which High Point tried relying on. Similar to the amendment of its claim through its initial auxiliary requests, if this reference had been permitted, it would force the Court of Appeal to decide on arguments first brought to the court’s attention at the last stage of the appeal. Accordingly, the Court of Appeal was right in dismissing this reference in light of the principles of due process.

The Supreme Court however, as a final remark, also mentioned that the District Court only revoked the original (broader) patent and not the patent in its limited form after the central limitation. The central limited patent has therefore not been subject yet to any legal proceedings in The Netherlands. High Point may therefore still rely on the central limited patent in new infringement proceedings against KPN. To be continued?