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Showing posts from April, 2011

The Community Patent is Dead - Long Live the Unitary Patent

Despite such setbacks as the decision of the Court of Justice of the European Union on the incompatibility of the proposed European Patents Court with EU Law and the objections of the Italian and Spanish governments to an EU patent (see my case note on the CJEU's decision), the European Commission has proposed two regulations for a single European patent for the other 25 member states (see the press release "Commission proposes unitary patent protection to boost research and innovation" 1P/11/470).
The first proposed regulation would be for enhanced co-operation in the area of the creation of unitary patent protection. The second would be for translation requirements. The combined effect of those regulations would reduce the cost of patenting in the participating member states (which would include the UK, Germany and France) by 80%. Under the proposals applicants could apply to the European Patent Office for a European patent that would designate all the member states…

Patents County Court: £500,000 Financial Limit

The recommendation of the Intellectual Property Court Users' Committee that was not implemented on 1 Oct 2010 when the New Patents County Court Rules came into effect was a £500,000 limit to claims. The reason for the late implementation of that proposal is that it had a mixed reception. According to the Committee"Some approved of the Working Group’s proposal. Some thought that there should be a higher limit. Some thought that there should be a limit not on the damages or profits claimed, but on the value of the claim as a whole e.g. by reference to the annual sales, or projected sales, of products protected by the IP right (i.e. total sales made by the right owner, its licensee and/or the alleged infringer). Some thought that there should no limit." Although there was no official limit to the value of a claim that could be brought in the Patents County Court, Judge Birss QC certainly took the value of the claim into account when he transferred Alk-Abello v Meridian Med…

Practice: Media CAT v Adams and Others - The End

After the party comes the bill. In this final episode of the Media CAT saga (Media CAT v Adams No, 4[2011] EPC 10) His Honour Judge Birss QC decided who was to pay for episodes 1, 2 and 3. Or, to be more accurate, whether the solicitors who brought this litigation and their principal Andrew Crossley, should pay for them under s.51 (6) of the Senior Courts Act 1981,
This sub-section provides: "In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court." The proceedings mentioned in s.51 (1) are proceedings in the Civil Division of the Court of Appeal, the High Court and any county court. Wasted costs are defined by s.51 (7) as "any costs incurred by a party— (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other represe…

Patents: Merck Sharp & Dohme Corp v Teva UK Ltd

In my article "Divided by a common language: US and UK patent law" which was published in Science, People & Politics (April to June 2011) I noted that one of the differences between US and UK patent law was that 35 USC 102 (b) of the US act permits an application for a US patent even where the invention has been described in a publication or application for a foreign patent that has been made in the last 12 months. In England such publication would be prior art. Right on cue a case that illustrates the point is the decision of the Court of Appeal in Merck Sharp & Dohme Corp. v Teva UK Ltd.[2011] EWCA 382.
This appeal from the decision of Mr. Justice Floyd in Teva UK Ltd v Merck & Co, Inc [2009] EWHC 2952 (Pat) (20 Nov 2009). [2010] FSR 17 was in respect of an application by Teva UK Ltd. ("Teva") for the revocation of Merck Sharp & Dohme Corp ("Merck")'s European patent no. 0509752 on grounds of obviousness. The patent in suit was fo…

WIPO Day Road Show

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“Designing the Future” is the theme of this year’s World Intellectual Property Day 2011.In his message, Francis Gurry, the Director General of the WIPO, said:“Design touches every aspect of human creativity. It shapes the things we appreciate from traditional crafts to consumer electronics; from buildings and bicycles to fashion and furniture. Design has been called “intelligence made visible”.Design is where form meets function. It determines the look and feel of the products we use each day – from everyday household items to the latest tablet computers. Design marries the practical with the pleasing. It brings style to innovation.”In everyday language design can refer either to an object’s appearance or to the way it works. Thus, we speak of “fashion design” and “engine design”. The former is ornamental and the latter functional.Most countries protect ornamental design by one means or another. For example, EU member states are required by art 3 (1) of Directive 98/71/EC of the Europ…

Patents: Schütz (UK) Ltd v Werit (UK) Ltd

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The main point of Schütz (UK) Ltd v Werit (UK) Ltd [2011] EWCA Civ 303 (29 March 2011) was whether a patent for an intermediate bulk carrier - essentially a large plastic bottle tightly encased in a tight metal cage constructed from tubes flattened at each join - could be infringed by inserting the bottle into a cage constructed from differently connected members.

The relevant claim was as follows: "Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid ..." There was nothing special about the pallet or the bottle. The photo shown above is not a picture of the patented invention but of the prior art. Lord Justice Jacob inserted that pictu…