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Tuesday, 26 July 2005

A PAIR OF PATENT CASES




1 Split 'em and streamline 'em

The UK has not been renowned for the speed or economy with which it decides its patent disputes. This is a shame, because since November 2003 the Patents Court has had a special streamlined procedure for fast-tracking patent litigation. In Canady v Erbe Elektromedizin GmbH and others (decided yesterday by Mr Justice Pumfrey and speedily picked up by the Butterworth All England Direct subscription service) this procedure was utilised (for the streamlined procedure, click here and scroll down to item 10).

Speedy Gonzales (right) endorses the Patents Court's fast-track procedure

Canday owned a patent for a surgical tissue coagulator, consisting of a tube that was used for the transmission of argon or another noble gas. The claim specified that the device had a handle for the purpose of manipulation. Canady sued Erbe, a German company that made medical equipment, as well as various other defendants, two of whom argued that there had been no infringement since the allegedly infringing products did not have any handles. Those defendants applied for a split trial and an order that the issue of infringement be heard under the streamlined procedure, leaving the dispute relating to the validity of the patent to be determined at a later trial. Pumfrey granted the order: since the issue of infringement was, essentially, a matter of construction of the patent and might be dealt with quickly according to the streamlined procedure. If the patent was not infringed, there was no need to spend time and effort trying to invalidate it.
The IPKat likes this. Splitting of infringement and validity issues works particularly well in low-technology areas where the claims are relatively easy to construe.


2 Scotland on steroids? No, it's England again ...

People sometimes forget that, while the United Kingdom has a unified patent system, it does not have a single legal system, as any canny Scotsman will quickly remind you. In Ivax Pharmaceuticals UK Ltd v Akzo Nobel NV (also decided yesterday in the Patents Court and spotted by All England Direct, but this time heard by Mr Justice Lewison) Ivax sought a declaration that proceedings to revoke one of Akzo's steroid patents should be heard in Scotland rather than in England, on the basis that it was the most appropriate forum.

Lewison J dismissed the application and held that, balancing the competing factors, England was the most appropriate forum. Ivax was registered in England and conducted its business there, while Akzo was a Netherlands company. Although proceedings which had been commenced in Scotland by Ivax's sister company also involved Akzo's patent, they related to different aspects of the steroid’s manufacture and there was no significant overlap in the subject matter at the centre of the disputes. Nor was there any risk that the courts would reach inconsistent findings of fact.

The IPKat, while noting the decision, reminds readers that there is a fully-fledged and highly competent legal profession north of the border (click here to search for Scottish IP decisions).

2 comments:

Skeptic said...

I followed your link to Scottish IP cases. They don't get very many of them, do they? Even if Scottish lawyers are theoretically good, where's their experience? Surely it's safer to litigate in England!

Anonymous said...

putting to waste some good money that could have been used in other areas of development for the business involved.

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