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Friday, 23 July 2004

FRAMED? FIRST THE GOOD NEWS ...


Mr Justice Lewison gave judgment yesterday in Ultraframe (UK) Ltd v Eurocell Building Plastics Ltd and another, [2004] EWHC 1785 Ch, a grippingly complex saga of patents and unregistered design rights. Ultraframe owned a patent relating to the design of conservatories.  Eurocell were the distributors of the Ultralite 500  modular system produced by Ultraframe under its patent.  In 2002, however, they began to make and sell a competing system, Pinnacle 500. Ultraframe sued, alleging  that the Pinnacle 500 infringed both its patent and its design rights in the Ultralite 500. Not so, said Eurocell: the Pinnacle 500 fell outside Ultraframe's patent claims and, even if it didn't, the patent was invalid.  What's more, Eurocell complained, the Ultralite 500 design was not only commonplace but also fell within the 'must fit' and 'must match' exceptions to design right under s.213(3)(b) of the Copyright, Designs and Patents Act 1988.

The good news for Ultraframe was that its patent was valid, as was its unregistered design right. Granted patents are presumed valid unless sufficient evidence is adduced to rebut that presumption, which Eurocell hadn't managed to so. The bad news, through, was that its patent hadn't been infringed.  But good news was to come: its unregistered design right had been infringed.

The IPKat notes that, like all good trial judges in patent infringement proceedings, Lewison J applied the classic test of non-exact patent infringement in Improver Corporation v Remington Consumer Products Ltd [1990] FSR 181. The House of Lords is currently reviewing patent infringement tests in the Amgen case. The Improver test looks sure of a good, clean bill of health since its author, then Mr Justice Hoffmann, is now Lord Hoffmann who (the IPKat's impeccable source assures him) took an extremely active role in the Amgen hearing.

Framed? Click here, here and here

1 comment:

Anonymous said...

I am not sure the Lord Hoffmann of Chedworth will approve the improve. Lord Hoffmann has been attributed with saying that he was bound to say what he did in Improver because Catnic told him to do so. I do not know however if Lord Hoffmann did say such a thing. The difficulty with the Improver approach is that it works well for simple mechanical patents but, say some, it falls to pieces when one leaps up the technology ladder

Practitioners do tend to look at the protocol to article 69 EPC more these days and indeed in Drill Safe the Court of Appeal did endorse the protocol, whilst at then same time approving improver. In the end the question to be asked is whether the public or the member of the public reading the patent leaves the document with a fair degree of certainty about what can or cannot be done. That seems more protocol than Improver.

Ashley

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