Virgin Media boxes safe (for now)

It seems a very long time since the IPKat noted here of the impending battle between the (then Murdoch-owned) Gemstar and Virgin Media. The battle itself took place earlier this year over an astonishing 13 days at the High Court. This has now culminated in a very long judgment from Mr Justice Mann in the Patents Court that was delivered earlier today and has just been made available here.

As the judgment is so long, the IPKat will leave providing a detailed summary until later, but for now notes that all three of Gemstar's patents (see the IPKat's previous post for details) relating to electronic programme guides were found by Mann J to be invalid for lack of novelty or inventive step, and therefore not infringed. Two of them were also found, for good measure, to be unpatentable for relating to computer programs or presentations of information as such (or, if you prefer, lacking a "technical contribution"). For those of a suitable frame of mind, there is yet more extensive Aerotel-type analysis of what constitutes patentable subject matter at paragraph 33 onwards. Others, however, may prefer to wait until the Enlarged Board make their decision, which might just arrive in time for this case to be decided all over again at the Court of Appeal.
Virgin Media boxes safe (for now) Virgin Media boxes safe (for now) Reviewed by David Pearce on Thursday, November 26, 2009 Rating: 5


  1. For readers wanting to look at the patents in question, paragraph 141 of the judgment gives the Favorites patent number as EP 1337049 B1; it is actually EP 1377049 B1.

  2. The IPKat has received the following comments (edited slightly) from someone who prefers to remain anonymous:

    "The post yesterday was obviously an interim post, expressly without detailed analysis, but it missed the core message of the judgment that this is a sound, outright win for VM on multiple grounds which will have devastating effect for Gemstar around licensing negotiation tables in the UK and Europe.

    The J loved VM's witnesses ("impressive" and honest) and did not love G's ("pedantry ..." and biased) to say the least.

    This is the first major case in the EU, and probably the world, when validity and infnt of G's patents have been considered in depth by one court at one time. The court has found resoundingly against them on numerous grounds. G will not be happy - they clearly chose these 3 patents because they thought they were their strongest candidates for testing in the court. G makes a lot of money from its "licensing" activities.

    On "excluded subject matter", the decision reads in a robust manner for both CP and PofI and the combination. The EPO reference is unlikely to have any effect whatsoever on it, even if G appeal and somehow the case is delayed pending the EPO appeal. Anyway VM's clear win on anticipatn and/or obviousness render their exposure remote at best, in any event. The VM boxes safe "(for now)" title and tenor of the IPKat post give the entirely false impression that there is significant doubt in the air. A reader of the judgment itself, knowing G's background, does not get that impression!

    From the "inside" and indeed the indutry perspective (and their advisers) the post yesterday was clearly a "miss". Gemstar, if they saw it, would be beaming, unjustifiably, from ear to ear like a cheshire cat!"

  3. This will probably go to appeal and that will be interesting.

    On the patentability issues in the Judgment (starting from para 33) I believe the reasoning is wrong on several counts. However, based only on the written judgment, the blame appears to lie with the claimants not the Judge.

    I’m not sure that the UK courts have ever dealt with "user interfaces" before, but the EPO have and in the absence of express precedent form the UK the Judge may well have followed relevant EPO TBA decisions. The TBA have upheld numerous user interface patents and yet seemingly none of the relevant decisions were refereed to. Instead less relevant EPO cases like Vicom and IBM were mentioned.

    The guidelines are sensibly brought up, but the significance of the key sentence "The arrangement ... of representation, as distinct from the information content, may well constitute a patentable technical feature" appears to have been completely overlooked, with the claimants instead seemingly stressing less relevant sentences.

    The main difficulty with protecting user interfaces at the EPO is not whether they can ever be considered technical but in satisfying the EPO that any advance is objective not subjective. I have not studied these patents in enough detail to know how they would have faired before the TBA but the fact that one of the survived an opposition suggests it may have been positive.

    My main criticism of the Judge would be that like Lewison J he tries to fit the allowable computer implemented inventions such as Symbian's into narrow discrete exceptions to the exclusion.


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