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Showing posts from November, 2011

Patents: Court of Appeal flushes Earth Closet Orders Down the Pan

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The Court of Appeal's decision in Fresenius Kabi Deutschland GmbH and Others v Carefusion 303 Inc [2011] EWCA Civ 1288 (8 Nov 2011) is likely to make life just a little bit harder for patentees, especially the individual inventors and small businesses that I tend to advise and represent. It's tough enough trying to enforce a patent because a common if not the most usual defence is that the patent is invalid. The usual ground for challenging the validity of a patent is obviousness and lack of novelty. Obviousness means that the invention involves no inventive step having regard to the prior art (that is to say everything that has been made available to the public anywhere in the world) while lack of novelty means that the invention has already been invented.
It was not easy to keep up to date with the prior art when most of the world's new technical literature was in English or some other European language but with the rapid growth of China, Korea and East Asian countries…

Patents: Human Genome Sciences Inc. v Eli Little and Co.

In its second intellectual property appeal (the first being Lucasfilm v Ainsworth [2011] UKSC 39 see my case note "Lucasfilm v Ansoworth The Supreme Court's First IP Appeal" 31 July 2011 IP/IT Update) the United Kingdom Supreme Court had to consider the way in which the requirement of industrial applicability extends to a patent for biological material. One of the conditions for the grant of a patent in art 52 (1) of the European Patent Convention ("EPC") is that the invention is "susceptible of industrial application." Art 57 further provides that "[a]n invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture." S.1 (1) (c) and s. 4 (1) of the Patents Act 1977 makes identical provision in respect of British patents. Footnote 5 to art 27 of TRIPS suggests that the term "capable of industrial application" may be deemed by a WTO member as synonymou…

Injunctions against ISPs

On 26 Oct 2011 Mr. Justice Arnold ordered British Telecommunications Plc to: "adopt the following technical means to block or attempt to block access by its customers to the website known as Newzbin2 currently accessible at www.newzbin.com, its domains and sub-domains and including payments.newzbin.com and any other IP address or URL whose sole or predominant purpose is to enable or facilitate access to the Newzbin2 website. The technical means to be adopted are: (i) IP address re-routing in respect of each and every IP address from which the said website operates and which is notified in writing to the Respondent by the Applicants or their agents; and (ii) DPI-based URL blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub-domains and which is notified in writing to the Respondent by the Applicants or their agents." This order was granted upon the application of a group of film and TV programme makers…