Who says patents are a licence to print money?

So far the IPKat has only found a note on European Central Bank v Document Security Systems Inc [2007] EWHC 600 (Ch) on LexisNexis Butterworth's subscription-only service. It's a Patents Court decision from Mr Justice Kitchin and Monday's ruling goes like this:

Right: the European Central Bank

DSS owned a European patent for a method of making a document incapable of replication by a scanning type copying device. The patent was particularly relevant for security documents like banknotes and travellers' cheques. Claim 1 of the patent provided for

"a method of making a document that is not faithfully replicable by scanning-type copying devices, the document using a visible original image comprising art, pictures and/or image forms made of curvilinear lines, dots and/or swirls, the method comprising the steps of ... ".

Integer D 1 of this claim described the process of

"overlaying the grid pattern on the original image to produce on the document a printed image which comprises the original image having a superimposed transmitted or obstructed print pattern conforming to the grid pattern ... ".

The patent application had been filed on 16 January 1990, claiming priority from a US application. Following a long period of gestation in which various amendments were incorporated, an EPO Board of Appeal finally allowed the application in 5 February 1999. By then, claim 1 was significantly different, although the specifications of the application and the patent were framed in virtually identical terms.

DSS later sued the ECB - a European instition - for patent infringement before the Court of First Instance, alleging that Euro banknotes were made by an infringing process. While those infringement proceedings were pending, the ECB applied to revoke DSS's patent on the ground of added matter, contrary to section 72(1)(d) of the Patents Act 1977. According to the ECB, the feature described by integer D 1 of claim 1 was not disclosed in DSS's patent application. DSS argued that, while integer D 1 might not have been explicitly disclosed in the application, its disclosure was implicit if you looked at the specification of the application rather than of the granted patent.

Kitchin J revoked the patent. He held that it was settled law that matter would be found to have been wrongfully added unless it was clearly and unambiguously disclosed in the application, whether explicitly or implicitly. In this case, however, the application was not merely silent on the point that was now said to be implicit: it actually contradicted the patent by describing a method that was different from that which was now said to be implicit. This being so, the patent was invalid.

The IPKat thinks this must be right in principle, even though he's not had a chance to read the text of the decision. The notion of the constantly-evolving patent claim, honed and crafted over the years in order to incorporate art rather than stake an initial entitlement to it, is something he associates more with US submarine patents than with the European species.

Right: The IPKat, not trusting the banks, prints his own money ...

Merpel wonders why the revocation proceedings were brought in England and Wales, when presumably it was open to the ECB to attack the validity of the patent elsewhere - or are there parallel proceedings in other countries? Can anyone tell her?

European Central Bank here
Print your own money here and here