Global law firm Norton Rose Fulbright, jointly with European patent attorneys from Isenbruck Bösl Hörschler, has won a patent dispute on behalf of its client DrSlym Vital. The dispute related to a dietary product marketed by DrSlym Vital. Patentee Dr. Lück had banned this product from the market by means of a preliminary injunction from the District Court Munich based on a second medical use claim of the patent-in-suit.
The firms were successful in their appeal with the Board of Appeal of the European Patent Office (EPO) rebutting a main and 23 auxiliary requests of Dr. Lück, finally revoking the patent-in-suit by confirming the invalidity of the original decision of the EPO Opposition Division. The revocation of the patent deprives the preliminary injunction and another pending infringement lawsuit at the District Court Munich its basis.
Dr. Lück claimed to have invented the use of glycerol for short and long term fasting people without fasting related side effects (such as hunger and dizziness), although they remain in the fasting state in which they continue to burn fat. The liquid solution of glycerol helps fasting people to keep their diet. The EPO, however, considers the subject matter of the alleged invention not to be novel over the prior art.
One of the major reasons for the EPO coming to this conclusion is that the drop of the blood glucose level of fasting people that causes severe hunger is not an illness that is cured by the glycerol solution. Dr. Lück therefore was not entitled to a second medical use claim patent, which is a format reserved for a therapy of an illness.
Norton Rose Fulbright’s Munich-based patent litigation partner, Clemens Rübel who led the team that also included associate Maximilian Schmitz, commented:
This was an intensive patent dispute, so it is a rewarding win for our client. DrSlym Vital now has the freedom to develop its business without the threat of a ban of its sales, while the patentee is facing damage claims for premature enforcement of the preliminary injunction.”
Norton Rose Fulbright worked with Isenbruck Bösl Hörschler patent attorneys Fritz Lahrtz and Stephanie Nottrott.