|Either Martin gets to Dallas,|
or the fish get his paper
The IPKat posted this quick note on today's UK Supreme Court decision in Schutz v Werit, knowing full well that his readers would soon be rifling its contents for gems of value. Gary Moss (EIP) was one of the first to strike gold. He writes:
Paragraph 38:- “The House of Lords and this court have emphasised on a number of occasions the desirability of national courts following the established approach to infringement of the Technical Board of Appeal of the European Patent Office.”Adds Gary: since when did the EPO opine on issues of infringement? He then points out a statement in the following paragraph: “The parties in this case have not referred to any relevant decision of the EPO ... Wonder why that is? Oh dear!" Merpel notes that MaxDrei also spotted the paragraph 38 curiosity, posting a comment to that effect below the original Katnote. Thanks, Gary and Max.
" ... The correct name of the UK IPO is, as you say "The Patent Office", but this does not arise from s.112 of the Patents Act 1977. It arises from the unrepealed section 62 of the Patents and Designs Act 1907 ... I draw attention to ... the word "shall". Thus, the "IPO" breaks the terms of the statute governing its very existence.
The following (still existing) s. 63 of that 1907 Act also defines the term "comptroller-general" as a then -continuing definition, this stemming from a definition to be found in wording in the Patents, Designs and Trade Marks Act 1883 (repealed entirely by this 1907 Act).
As regards, s.112 of the Patents Act 1977, the "Level 4" maximum fine still stands at £2,500 ..., this sum not having (yet) been increased from the figure decreed in 1991. However, the recent Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), in sections 85-87 ..., provides power to amend any such maximum fine under secondary legislation, but my researches have not yet found any Statutory Instrument making such a change.
I am not aware that any prosecution for breach of s. 112 (or its predecessors) has ever occurred but ... warnings have been issued which have led to withdrawal of job-vacant advertisements without the need for prosecution. Anyway, there must be some doubt as to whether s. 112 would apply to misuse of the term "IPO"".