Based on evaluation of the evidence presented by both Frese and Flowcon, as well as the Danish Patent and Trademark Office, the court finds a) that the Frese Patent PR176350 is upheld, b) that the Flowcon SME valve is infringing on the same patent and c) that the prohibitory injunction preventing production, sale and marketing of the Flowcon SME valve granted in May 2008 stands. The verdict was issued by the court August 21st 2015 and it can be downloaded from the Frese A/S website (www.Frese.eu) in Danish. Frese has also made a summary in English.
Frese A/S has been a pioneer in the development of dynamic balancing and control valves, since the release of its first dynamic valve in 1988. The first pressure independent control valve (PICV) was released by Frese in 2005 and Frese continues to innovate PICV technology, recently releasing high performance PIC-Valves in sizes up to DN150 / 6”.
The dispute started approximately 8 years ago with the introduction of the Flowcon SME valve by Flowcon International A/S. The valve includes construction elements which Frese believed were using the intellectual property rights protected through Danish patent number PR176350 (issued in August 2007), and the equivalent international patents.
The alleged infringement was brought before the Bailiffs Court of Næstved, which in 2008 rules in favor of Frese A/S and issues a prohibitory injunction preventing production, sale and marketing of the Flowcon SME valve in Denmark. The prohibitory injunction was brought before the Maritime and Commercial High Court by Frese A/S in a confirmatory action and Flowcon International A/S appealed the issuing of the patent.
In 2010 The Danish Board of Appeal for Patents and Trademarks upholds the decision of the Danish Patent and Trademark Office. Flowcon International continued to seek to have the patent annulled and in 2011 they appeal this decision. Such appeal is to be tried at the Danish Maritime and Commercial High Court.
In 2012 Flowcon also appeal to the Board of Appeals of the European Patent Office for the granting of equivalent patents throughout most of Europe. In 2013 the Board of Appeals ruled in favor of the Frese patent and against Flowcon. It was thus validated that the equivalent patent granted for most of the European countries is valid.
The prohibitory injunction from 2008 and the 2nd appeal from The Danish Board of Appeal for Patents and Trademarks with respect to the validity of the Danish patent from 2011 have now been tried together at the Danish Maritime and Commercial High Court, which have ruled in favor of Frese A/S and against Flowcon International A/S on all issues as described above. We note that Flowcon could appeal the judgement from the Danish Maritime and Commercial High Court to the High Court.
With the ruling of August 21st this year, we now have an assessment in favor of Frese in this dispute from 4 different trials in 4 different settings. We are thus confident that the strength of our intellectual property right protection is intact. Patents equivalent to the PR176350 patent have been issued throughout most of the European Union, as well as in Switzerland, Turkey, United Arab Emirates, Brazil, Canada, USA and China with validity from August 2007.
Frese considers production, marketing, sale, import, export and the service and supply of spare parts of or for the Flowcon SME valve in any of the countries where patent has been granted, to have been and continue to be an infringement of the rights of Frese and Frese reserves its rights to pursue such infringements.
We do, however, remain positive with respect to entering amicable dialogue with any third party that believe it may unknowingly have violated such intellectual property rights with the purpose of finding a reasonable solution. If you have any questions in that regard please do not hesitate to contact us.
René Barington
CEO
