Novelty: Functional Elements Fail To Provide Novelty Over Prior Art Having All The Physical Elements

District Court, The Hague. 25 November 2015, C/09/483615 / HA ZA 15-245 (HP v Digital Revolution)

There is a sizeable market for printer ink cartridges. HP brought the patent proceedings against Digital Revolution, one of the largest suppliers of original and generic cartridges in the Netherlands and the owner of the website www.123inkt.nl. HP alleged Digital Revolution infringed the Dutch part of its European patent 2 170 617 relating to a printer cartridge provided with a memory unit ("EP 617") by offering and trading in generic cartridges compatible with HP printers. Digital Revolution denied infringement and counterclaimed for invalidity.

Digital Revolution argued EP 617 lacked novelty over an earlier patent granted to HP for virtually the same invention. HP did not contest that a number, but not all, of the claimed elements of EP 617 could be found in the earlier patent. The parties differed, however, as to the question whether the remaining elements could