BRAKE FOR THE BORDER

An unusual event yesterday was the hearing of a Scottish patent case by the judicial committee of the House of Lords (the appellate tribunal which the British government is set to replace with a Supreme Court). In Buchanan v Alba Diagnostics [2004] UKHL 5 Buchanan, who owned a 1996 patent for a fluid boiling point measuring device, alleged Alba infringed it by making and selling its brake fluid tester. Alba, denying infringement, raised the preliminary point that Buchanan had no title to sue because he had earlier assigned his patent rights to an investor, Mills, who had in turn assigned them to Alba. Mills had invested in Buchanan’s company, Innovations, taking security in the form of a 1993 assignment of intellectual property rights, including improvements and extensions to existing applications and patents. After Buchanan's company went into receivership Mills sold the charged assets, as the deed of assignation permitted him to do, to Alba in 1994. Alba maintained was that Buchanan’s 1996 patent was an improvement on the invention which passed to Mills under the deeds of assignation, with the result that the patent rights also passed under the deeds at the same time as the patent was granted under the doctrine of accretion. The trial judge and the Inner House, Court of Session, held that Buchanan had no title to sue so he appealed to the House of Lords, who dismissed his appeal. Their Lordships considered that, since the doctrine of accretion applied to the disputed invention, it passed under the assignment to Alba. Nor was the assignment of improvements -- a transaction between two experienced businessmen -- void as an unreasonable restraint of trade: any purchaser of patent rights could reasonably protect the commercial value of his purchase by seeking the right to any improvements. There was no public interest in inventors being prevented from borrowing money on the security of future rights.

The IPKat wonders at Mr Buchanan’s industry in getting what appeared on the facts to be a relatively straightforward case all the way to the House of Lords, the highest appellate tribunal in the UK. If the transaction in question in question were against the public interest, small-scale inventors would find it extremely difficult to obtain innovation and development funding at all.

More on brake fluid here, here and here
Other fluids with a Scottish connection here and here
Brake fluid joke here