Danish Maritime and Commercial High Court rejects claim for entitlement


On Thursday 27 June 2019, the Maritime and Commercial High Court gave judgment in a case regarding entitlement to two European patent applications filed by Danisco US Inc. The Court acquitted Danisco of Novozymes A/S' claims of exclusive or joint ownership to the patent applications.

Novozymes argued to be entitled to (i.e. owner of) the patent applications based on patent applications that had been filed and published by Novozymes and its business partner before Danisco's applications. Novozymes argued that Danisco must necessarily have been aware of these applications. Novozymes also relied on an academic presentation by one of Novozymes' scientists at a conference which was attended by two of Danisco's scientists.

Danisco disputed Novozymes' claims and argued that it is not possible to obtain entitlement to a third-party patent application solely based on an assertion that the patent application-in-suit contains information which has been made available to the public before the application date of the application-in-suit. Two law professors had provided opposite opinions about Danish patent law on this point.

The Court held that it was undisputed that the inventions and the associated documents etc. produced by Novozymes were all made public at the time when Danisco developed its inventions. Accordingly, the Court agreed with Danisco that it was not possible for Novozymes to obtain entitlement to Danisco's patent applications solely based on an assertion that the patent applications contained information which Novozymes had previously made available to the public. The Court observed that in patent law terms, an invention presupposes that there is an independent intellectual contribution, and, thus, it cannot be based solely on prior published knowledge.

On this basis, the Court completely acquitted Danisco.

Kromann Reumert (Nicolai Lindgreen and Nicolaj Bording) acted for Danisco.

Read the full decision in Danish