Alinea 64 Parket bij de Hoge Raad 31 oktober 2003

'Such a concept can hardly be reconciled with fundamental principles of patent law, as it implies an extension of the monopoly to unpatented elements of the invention. The unauthorized benefit derived from the invention by the supplier is not in itself a sufficient basis for establishing infringement, because that benefit does not deprive the patentee of any part of his monopoly. Infringement requires prohibited use of the invention which prejudices, or threatens to prejudice, the patentee's exclusive right to the invention. In the case of indirect infringement the prejudice can only be the subsequent direct use: the supply of means for the invention, in itself, does not prejudice the patentee's monopoly, which does not cover unpatented means. The patentee has no exclusive right to make or sell essential elements of his invention: such elements may be freely made and sold for any purpose other than utilising the invention, or even for use in the invention by persons entitled to exploit it. The conclusion emerging from these factors is that only indirect use of the invention by the supplier which is coupled with a threat or potentiality of unauthorized direct use by the purchaser can justify a prohibition on trade in unpatented products. Hence, the ultimate aim of Art. 26 CPC, although not clearly expressed, is presumably to prevent third parties from aiding unauthorized direct use of the invention.'

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