Wednesday Whimsies

Forget 99 flakes, the AmeriKat is more of
a snow cone kind of gal
IP judge seen getting a sweet treat? The AmeriKat has spies filtering in the latest news and IP intrigue from across London and the world. Yesterday morning, one of her black messenger crows called Statute dropped off the latest report from her network. It read as follows:
Spotted. Lincoln's Inn. IP judge with entourage surrounding ice cream vans parked around quad. Initial assessment: a new turn for the court with friendly judges adjourning proceedings for mid-morning, albeit unseasonal, treats? Revised assessment: more plausible that ice cream vans are rather too large to be exhibited in court. Intel is that the court is part way through hearing a design infringement case between two ice cream van manufacturers. Whitby Specialist Vehicles v Yorkshire Specialist Vehicles. Expected outcome: a judgment which is a bit like a good ice cream - sprinkled with goodies, but with no flakes given that Mr Justice Arnold presiding.  ["Though your ice cream will have probably melted by the time you get to the end of the judgment," chortles Merpel, but the AmeriKat thinks that if that is so, you just aren't eating fast enough.]

Lord Justice Floyd  - not impressed
with pleading points on appeal
Court of Appeal rules for ASSIA's patents in BT Infinity broadband case: Yesterday morning, the Court of Appeal handed down its decision in the patent infringement case brought by Adaptive Spectrum and Signal Alignment, Inc (ASSIA) against BT in relation to the technology behind BT's Infinity broadband system (referred to as the "NGA system"). Lord Justices Patten and Floyd and Sir Stanley Burnton held that the NGA system infringed two of ASSIA's patents. The patents describe and claim inventions fundamental to DSL management technologies, which allow broadband providers to vary the parameters at which they provide broadband services to their users. Such parameters include minimum and maximum data rate, and different types of error correction (such as interleaving and impulse noise protection). The background to this case is set out at paragraphs 4 to 12 of the Court of Appeal's judgment.

The AmeriKat is in the process of assimilating the decision but notes there was a lot of discussion regarding the parameters of claim construction (which she will reserve for another day). Besides construction the case deals with some practice points on the level of details that is required in statements of case on infringement and general pleading issues. As is common in English patent litigation, BT produced a Product and Process Description (PPD) describing its system and ASSIA produced a statement of case on infringement (SOCOI). The order concerning the SOCOI specified that it should set out the paragraphs of the PPD that ASSIA relied upon to prove infringement for each claim it asserted was infringed. ASSIA went further in its pleading, explaining how those paragraphs demonstrated infringement of one of the patents, but in doing so did not explicitly refer to an aspect of BT's NGA system subsequently held to be essential to BT's infringement at trial (the "cap level table"). On appeal, BT argued that this meant that the case on which ASSIA had been successful was unpleaded and should therefore be dismissed. Lord Justice Floyd rejected this argument. In construing the order requiring service of the SOCOI, he agreed with ASSIA’s submission that the infringement case based on the cap level table was covered by the existing pleading as the order only required it to refer to the paragraphs numbers in BT's PPD. BT raised this as a pleading point but, again, the court said that that point should had been made at the latest at the hearing of the order following trial, not on appeal. The AmeriKat thanks solicitors for the victors - David Barron, Alexandra Brodie, Andrew Maggs and Tom Foster of Wragge Lawrence Graham - for bringing this decision to her attention.  The AmeriKat has no news on whether BT will attempt an appeal to the Supreme Court.

Janssen and Teva file to protect Chicago disclosing trade secrets:  Back in the summer, the city of Chicago commenced proceedings against several pharmaceutical companies, including Janssen, Purdue Pharma LP, Teva and Actavis alleging that they dishonestly marketed opioid painkillers including Oxycontin and Percocet for the treatment of common and non-cancer related chronic pain resulting in a reported public health crisis of addiction and abuse.  The complaint alleged that the defendants' marketing breached state law and city ordinances.  The defendants dispute the claims.  At the end of October, Teva and Janssen filed requests with a Chicago federal court requesting that the court orders that trade secrets concerning their products be protected.  Teva's subsidiary Celaphon had provided documents at the request of the city of Chicago on the basis that their trade secrets would be protected but that "since that time, in a series of written and verbal communications, the city took the position that it would disclose Cephalon's confidential documents to the press."  Click here to review Celaphon's request.  For more information about this and related lawsuits see this article in the National Law Journal and this article in Bloomberg.

And one more for the road
Interflora is back again.  Last week, the AmeriKat was desperately trying to wade through the Court of Appeal's lengthy decision in the Interflora case in preparation for a pithy and poignant post when the stark realization hit her - there was no way she could do the decision justice in one post (thank you Lord Justice Kitchen for writing such an epic!).  So while she is compiling her serial on Interflora, she will keep readers entertained with another judgment of the Court of Appeal in Interflora. The decision handed down this morning (not yet online, but available if you e-mail the AmeriKat), relates to how the retrial of the case originally heard by Mr Justice Arnold will run.  Its difficult to tell without the draft order actually in front of her, but the summary seems to be as follows: (1)the issues for retrial will be Interflora's claim for infringement under section 10(1) of the Trade Marks Act 1994; (2)  the case will be heard before a different judge of the Chancery Division; (3) directions for the retrial will be given by the judge of the Chancery Division; (4) on costs, pre-trial and trial costs have been reserved to the judge hearing the retrial; (5) costs of the appeals were awarded to the party who succeeded in each of the three appeals (i.e. there was no issue-based approach); (6) M&S was awarded an interim payment of costs of £160,000; (7) M&S is entitled to repayment of £1.1 million which it was required to pay under the order of Arnold J at first instance.

SPC Law and Practice Seminar 2014 Presentations Now Up!  For those of you who, like the AmeriKat, absolutely "geek out" about everything SPC-related, you will be sure to enjoy the recently uploaded presentations from last week's SPC Blog SPC seminar.  You can find the presentations at this link.

IP student looking for some IP experience Coming highly recommended by Kat Eleonora, one of her IP law students at the University of Southampton, Alexander Pirnak, would like to get some exposure to IP work. This may be through a placement, internship, or anything that could give him an idea of how fun and exciting IP is, and what a career in IP might be like. Alexander is a Russian native speaker, and grew up in Dubai. For all inquiries email  or directly Alexander ( ).
Wednesday Whimsies Wednesday Whimsies Reviewed by Annsley Merelle Ward on Wednesday, November 12, 2014 Rating: 5


  1. Interflora decision is now online:

  2. Thanks Court of Appeal rejecting the ‘initial interest confusion’confusion!


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