"OH WON'T YOU STAY?"

Hunt Technology Ltd v Don & Low Ltd is still not available to the public, though a note on it appears in today's Butterworths All England Direct service.

Don & Low had a European patent granted in November 2000. After the European Patent Office dismissed Hunt's opposition proceedings in the European Patent Office (EPO) but its opposition was dismissed, Hunt appealed to the EPO's Technical Board of Appeal and then commenced recovation proceedings in the UK. The determination of the appeal and the revocation proceedings were likely to take place within a short while of each other. Don & Low, seeking to stay the English proceedings, offered certain undertakings in support of that application, including an undertaking not to seek damages in respect of infringing acts by Hunt's customers in relation to goods obtained from Hunt during the period of the stay. Hunt resisted the defendant’s application, saying it would be unfair to stay the English proceedings as they required clarity on the issue of the patent’s validity for commercial reasons: accordingly the revocation proceedings should be allowed to continue.

A different sort of Hunt technology: would it fox Laddie J though?

In the Patents Court, Mr Justice Laddie allowed Don & Low's application. He held that, where proceedings were ongoing in the English court and in the EPO, in the absence of any other considerations, a presumption existed in favour of staying one or other of the two sets of proceedings. Where other considerations arose, the court had to weigh up those considerations in order to determine where the balance of justice lay. In this case, having regard to the undertakings offered by the defendant and the likely timetable for determination of the proceedings, it was appropriate, on balance, that the English proceedings be stayed.

The IPKat looks forward to seeing what the specific facts and timetabling were in this case, though he muses that "it all depends on the fact"-type discretion does guarantee that litigation is usually required before a satisfactory result can be achieved.

More on stays here and here