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Wednesday, 29 October 2008

Ten zeros still add up to zero, as Corus seeks killer point in vain

On 7 February, in a decision that quite bypassed the normally vigilant IPKat, Judge Michael Fysh QC (Patents County Court) held that Qual-Chem's killing slag patent was valid and infringed.

Right: Not all slag is so unglamorous -- here's a Spruce Green Slag Cat Iridised, 1998

Today, in Corus UK Ltd v Qual-Chem Ltd [2008] EWCA Civ 1177, the Court of Appeal for England and Wales has dismissed Corus's appeal in respect of which, it said:

"Neither side suggests that this case involves our having to decide any question of legal principle",
which presumably is why it needs a team of three appellate lawyers to hear it. Anyway, leading the decision of the Court (Lord Justice Pill, Lord Justice Scott Baker and Lord Justice Jacob), Jacob LJ had this to say:
"Although Corus pleaded many more points originally, the Judge had to deal with what, by my count, were no less than 10 discrete points or sub-points. The taking of many points is often the mark of a party which does not feel it has a single "killer". So it proved before the Judge who rejected all of them".
Even though the IPKat often struggles with patent decisions, he is dismayed to find one here which is so devoid of legal controversy. For many of us it's the law that provides the incentive to read the judgments since it's of general applicability to patent disputes, while the recitations of fact and their significance are not only demandingly technical but tend to be case-specific and therefore rarely worth remembering for the future. Let's have cases with more law and fewer facts, please! Merpel says, there's too much talk of killing here, bearing in mind that the patent in question is for "killing slag".

There's a note on the earlier decision in the Kilburn & Strode newsletter here.

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