From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 23 July 2015

Hosepipe Ban to Continue - Blue Gentian patent upheld in appeal

The IPKat previously reported (here) the High Court decision in Blue Gentian v Tristar Products; a decision perhaps most notable for its brevity.  The recent Court of Appeal decision (here) in the same case is even shorter, concluding that Birss J “carried out a thorough evaluation of the evidence before him and … made careful findings. He has made no error of principle. In my judgment there is no basis for this court to interfere with the conclusions to which he has come”, and unanimously upholding the patent for the XHose expandable hose.  This might be some consolation to Mr Justice Birss, having recently been told by the Court of Appeal that he had misinterpreted the meaning of the number 1 (see the IPKat's posts here and here)!

In the first instance in this case, Tristar did not contest that their actions would infringe the patent were it to be valid, but alleged that it was invalid because it lacked novelty or was obvious in the light of two prior art publications.  On appeal, novelty was not at issue, with Tristar only arguing that Birss J had erred when assessing inventive step.

It is established UK law that inventive step is “a kind of jury question” and that “where the application of a legal standard such as… obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation” (Lord Hoffman in Biogen v Medeva UKHL).  In this case, Tristar argued that Birss had indeed made a fundamental error in approaching the allegations of obviousness in that:

Merpel's distrust of hosepipes is not unfounded
 i) in relation to the first prior art document, he wrongly construed the document and that his errors of construction led him to conclude, wrongly, that their obviousness attack should be rejected as reliant upon hindsight; and
ii) in relation to the second, he again wrongly construed the document and relied upon evidence from Blue Gentian's expert, Mr Sinclair, which he should not have accepted.
Whilst mis-construction of a prior art document is of course a principle in which one could err, and despite the fact that Tristar made submissions which were “attractively…developed” by their counsel, Lord Justice Kitchin, (Lord Justice Tomlinson and Lady Justice Hallett concurring) found in Blue Gentian’s favour.  The Court of Appeal found that Birss J's analysis of the prior art and his reliance on the expert evidence was factually and legally sound and affirmed the High Court decision.

Perhaps more interesting is that the patent has fared differently in litigation in different jurisdictions; the Court of Appeal in Canada rejected an appeal from the judgment of Mr Justice Hughes who had found the patent obvious over the same prior art before Birss J (first instance here and appeal here).  In Australia the patent had been found valid (see here) and the judgment from the Australian Court of Appeal is awaited.

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