OF BIRDS AND BLACKBERRIES; WAIVE BYE-BYE TO PRIVILEGE

Of Birds and BlackBerries

Contrary to what he had previously feared, the IPKat has found the judgment of Mr Justice Pumfrey in Research In Motion UK Ltd. v Inpro Licensing SARL [2006] EWHC 70, sitting there and quietly minding its own business on the BAILII website.

An earlier press release from solicitors Bird & Bird, issued on the day of the judgment, read:

"We have been representing T-Mobile in their patent dispute relating to the supply of Blackberrys against Inpro Licensing. The decision from the High Court has just been handed down invalidating Inpro's UK Patent. [...] The full text of the judgment won't be available to the public but we'd be only too happy to talk you through the case. Please do not hesitate to get in touch".

The IPKat notes that the text of the judgment has been 'redacted' (that seems to be the polite word for 'censored'), but the bits that have been snipped out don't seem to be the bits that discuss the law. Merpel asks, er, how do you know? You can only see the bits that are there!


Waive bye-bye to privilege

Mayne Pharma Pty Ltd and another v Debiopharm SA and another, another Patents Court decision of Mr Justice Pumfrey, came out last Friday. It's not on BAILII but was noted both by All England Direct and Lawtel.

Mayne sought revocation of four of Debiopharm's patents relating to the production of a pharmaceutical product used in the treatment of cancer, claiming that they were not novel. Debiopharm sought disclosure of documents relating to experiments carried out in the work-up to the subject matter of a Notice of Experiments put in by Mayne, arguing that the service of the Notice of Experiments waived any legal professional privilege that might otherwise in respect of the work-up experiments and bar their disclosure.

Pumfrey J took the view that the scope of any waiver of legal professional privilege in the work-up experiments resulting from the service of a Notice of Experiments was a question of fact. In this case, it had been waived. Evidence of experiments that had actually been carried out was of a different order to experts' evidence or opinion: being essentially factual it could serve as a fixed point against which experts might be assessed and was thus potentially superior to the opinion of experts, however cogent their evidence might be. Once notice was served which disclosed their existence, any privilege in them was waived.

The IPKat is pleased with this outcome and wonders how the administration of justice would be served by allowing privilege to be preserved in situations such as this. Merpel says, is it just my imagination, or are the respective parties' logos somewhat familiar?