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Wednesday, 20 December 2006

Court of Appeal sides with Mr Micawber; Latest Patent World


Court of Appeal sides with Mr Micawber

The Court of Appeal today in Roche Products Ltd v Kent Pharmaceuticals Ltd [2006] EWCA Civ 1775 (noted here on BAILII) affirmed the decision of Mr Justice Lewison that the placing of a "CE" mark on goods, to indicate that they conform with European manufacturing standards, is not evidence of the unequivocal consent of their maker to the resale of those goods in the European Union.

In his earlier post on the trial decision (read it here) the IPKat said

"... Lewison J has got it right again. The presence of the CE mark on the products might well be a necessary condition for the marketing of those products, but the fulfilment of a necessary condition is not the same thing as the giving of implied consent to marketing in the EEA".
The three-man Court of Appeal (Lords Justices Ward, Neuberger and Moore-Bick) agrees. At paragraphs 39 et seq the court - for whom Neuberger LJ delivered the judgment - got to the heart of the appeal, though:
"It was argued on behalf of Kent that this conclusion is inconsistent with the view reached by this court in Glaxo Group Limited v Dowelhurst Ltd [2005] ETMR 104 ... The argument which was held to be fit to go to trial on the part of the defendant in that case was that an EMEA licence number (which has to all intents and purposes the same effect as the CE mark in the present case) on the packaging of the products in question operated as a sufficient consent ... to the placing of those products on the market in the EU.

... it seems to me that there are two points of distinction between that case and the present.

First, in the Glaxo case, as Jacob LJ put it in paragraph 31, at the "heart" of the defences he was there considering "lies the fact that for all the world the products looked like those on the French home market". In other words, unlike in the present case, the packaging between the product which was intended to be put on the market outside the EU was identical to the packaging of the product which was intended for marketing in the EU. In those circumstances, as pointed out by Moore-Bick LJ in argument, it appears that it was the EMEA mark, taken together with this identicality of packaging, which was sufficient to give rise to an arguable case that products with the former packaging had been the subject of an appropriate consent ...

Secondly, ... at least on the basis of what was said in Jacob LJ's judgment, it does not appear that the arguments advanced on behalf of the unsuccessful claimant in the Glaxo case, as to why the placing of the EMEA licence number on the packaging of the goods in question could not be treated as operating as a consent ... were the same as the arguments advanced by ... Roche in the present case ...".
The court then described the defendant's argument that summary judgment should not be given against it since there was a chance that it might unearth some evidence that showed that people would the presence of a CE mark as indicating consent to sell within the EU as "Micawberism". The IPKat thinks this is right: the whole point of giving summary judgment is to protect IP owners' dreams of protecting their investment against infringers' dreams of stealing it.

Mr Micawber here
Excellent book all about the CE mark by David Hanson here


Latest Patent World

The December 2006/January 2007 issue of Informa's almost-monthly Patent World has now reached the IPKat. The cover story, by talented Allen & Overy triumvirate Nicola Dagg, Philip Mansfield and Mark Ridgeway, is all about the interplay between patent law (which creates monopolies), competition law (which neuters them, if you're unlucky) and technical standards (which force monopolies open by decreeing them essential for everyone to use). Klaas Bisschop and Ruud van der Velden (Lovells) write about a recent Dutch case in which, despite the ECJ's pronouncements in GAT/LuK and Roche/Primus, cross-border relief was still granted [IPKat note: you can get a short version of this, by Klaas, from this month's excellent Lovells IP Newsletter]. There's also a fairly serious piece by Taylor Wessing's Gary Moss and Benjamin Grzimek contrasting BlackBerry patent litigation in various bits of Europe.

Full details of this issue here

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