A claim for 90 MSEK worth of damages is being filed today in the Skellefteå District Court by 707 Chilean plaintiffs, who were poisoned by arsenic-containing waste products deposited near their hometown in the early eighties. The defendant, the Boliden mining group, had commissioned a Chilean company to take care of the waste according to best practice at that time. But according to the plaintiff side, Boliden knew that best practice was not good enough – as the background section of their patent application SE8001847-6 reveals:
“The arsenic content of such waste products is often up to 20–40 %, rendering it difficult to safely dump said waste products because of the enormous environmental problems created thereby, even though the prescribed safeguards per se have been taken.”
It will be a crucial point to prove that Boliden’s decision-makers were as knowledgeable about chemical hazards as their patent drafters. A not-unexpected defence – and maybe a successful one – might be to have a patent attorney confirm that patent backgrounds often are very concerned about the shortcomings of the prior art, to draw a flattering backdrop for the invention.
The new claim brings to mind a case (judgment of 27 May 2003 by Bavarian Administrative Court of Appeal in case 5 CE 02.2931) where the holder of European patent EP0236736 requested the German Patent Office not to publish his competitor’s patent DE4332545 unless the competitor removed his disparaging statements about the former’s beverage cans:
“EP0236736B1 … show[s] a tearable lid … These stiffening ribs are however interrupted … so that the achievable stiffening action is more or less lost. Because further the pulling ring is substantially immersed in the U-shaped seam, it is difficult to get hold of the ring with a finger nail …. Yet another drawback is the considerable mechanical tensions in the lid, which develop during manufacture as a consequence of the many seams and deformations, and which lead to undesired displacements in the plate.”
The holder of EP0236736 produced evidence that these statements were much exaggerated. He cited § 4 of the German Act Against Unfair Competition (UWG), by which discrediting statements are an unfair commercial practice.
The court noted that the Patent Office has no duty to scrutinise statements in the background section, so that the public ought to read that section of patent publications with caution. Further, most applicants will want to highlight their invention by stressing the disadvantages of earlier solutions, of course within reason and without downright insulting their predecessors. Moreover, while patent rights may be powerful business tools, the court couldn’t agree that patent publications have a significant commercial impact. This decided the matter and the background section in DE4332545 was left unchanged.
It will be very interesting to see what importance the court attaches to the statements in Boliden’s 1980 patent application.
Anders Hansson, European Patent Attorney, member of Awapatent’s Specialist Team Litigation