Another short and sweet note from the LexisNexis Butterworths All England Direct subscription-only service: Canady v Erbe Elektromedizin GMBH and others, a Patents Court ruling yesterday by Mr Justice Laddie.
Canady owned a European patent designating the UK, which was opposed by Erbe before the European Patent Office (EPO). The EPO Opposition Division dismissed the opposition, whereupon Erbe appealed to the EPO Technical Board of Appeal. If Erbe won the appeal, the result of which was expected in July 2005, the Board was expected to remit the opposition for further consideration on its merits. Canady later brought infringement proceedings in the UK against the third defendant (a wholly owned subsidiary of O, a Japanese electronics company). The third defendant applied for either (i) a stay of the infringement proceedings until the Technical Board of Appeal of the EPO's ruling or (ii) a stay pending the outcome of an application to join O Corp as fourth defendant. The third defendant’s application was neither opposed nor supported by the other defendants.
Laddie J dismissed the application, since there was was no basis on which to grant a stay. There was nothing to gain by staying infringement proceedings until the Technical Board of Appeal determined the future conduct of the opposition proceedings, while a stay pending the determination of the application for joinder was unnecessary since O’s defence was likely to be the same as that run by the third defendant.
The IPKat agrees that there would be nothing to gain from granting the stay -- unless prevarication and delay could be said to be part of a viable business strategy. It's just a shame, though, that the resolution of opposition proceedings before the EPO takes so long. This state of affairs is commercially damaging and stressful for patent owners and their opponents to cope with: urgent attention should be given to this deficiency in the patent system.
More delays here