Apimed
On 20 January 2012 the Court of Appeal in England heard the case of Apimed Medical Honey v Brightwake Limited [2012] EWCA Civ 5. Apimed owned European Patent (UK) 1,237,561 (‘the Patent’) for an invention of “Medical dressings comprising gelled honey” and this was held invalid for obviousness at first instance in the Patent’s County Court. At first instance, the patent was also said not to have been infringed by Brightwake.
The Court of Appeal overturned the Patent County Court’s invalidity ruling on Apimed’s patent. Despite reiterating that “an appellate court will not ordinarily reverse a trial judge’s finding on obviousness unless he has made some error of principle”, [...]
Is it obvious how to apply “obvious to try”?
Although a number of issues were raised as to the validity of two patents in the recent Omnipharm v Merial[2001] EWHC 3393 (Pat) case, the most interesting feature of the case was the judge’s approach to the question of inventive step. The case focussed in particular on the role of the doctrine of “obvious to try”, which over the years has become a feature of the English patent landscape. The leading authority on “obvious to try” had for many years been the Court of Appeal judgment in Johns-Manville Corporations’ Patent[1967], in which Diplock LJ characterised a successful “obvious to try” attack as follows: “it is enough that the person versed in the art would assess the l [...]
Danisco A/S v. Novozymes A/S, High Court of Justice, Chancery Division, Patents Court, 8 December 2011, [2011] EWHC 3288 (Pat)
The English High Court has recently ruled on the appropriateness of staying validity and infringement proceedings pending a Technical Board of Appeal (“TBA”) decision of the European Patent Office (“EPO”), and on using disclosed documents in parallel foreign proceedings.
The parties involved have had a number of skirmishes recently in various courts throughout the world. The facts of their recent UK battle are as follows:
Danisco A/S (“Danisco”) applied to invalidate Novozymes’ patent, EP (UK) 1 804 592, which relates to animal feed pellets containing enzymes to promote digestibility. Although Novozymes does not yet have its product on the UK market, it is hoping to obtain regu [...]
Fresenius v. Carefusion, Court of Appeal Civil Division, 8 November 2011
The general rule in UK litigation is that the successful party is entitled to its costs. One exception to this rule, peculiar to patent cases, is a so-called ‘Earth Closet’ order. If an alleged infringer introduces a new piece of prior art, after service of its original Grounds of Invalidity, an Earth Closet order enables the patentee to consent to the revocation of the patent on terms that the patentee pays the costs of the action up to the date of the original Grounds of Invalidity, but the overall successful party – the alleged infringer – has to pay the patentee’s costs of the action from that date. However, in the case at hand the Court of Appeal held that Earth Closet Orders should no [...]
Schütz (UK) Limited v Werit UK Limited and another [2011] EWCA Civ 1337
We revisit this case, not this time regarding the question of what constitutes the ‘making’ of an invention as resolved by the Court of Appeal in March 2011, but with regards to the question of costs in relation to Schütz as an exclusive licensee. The general position under English law is if an exclusive licence relating to a UK patent is not registered with the UK IPO, then the licensee may struggle to recover costs in subsequent infringement proceedings. But what happens if the registered licence is later superseded by a non-registered exclusive licence between the same parties? At the end of last month, the English Court of Appeal gave us an answer to this very question.
The backgrou [...]
Earth Closet Orders flushed down the pan
On 8 November 2011, in the case of Fresenius v Carefusion, the English Court of Appeal declared that “the Earth Closet order should be consigned to the place that bears its name.”
The “Earth Closet” or See v Scott Paine Order was an idiosyncratic but potentially very important principle of English patent law. The Order originally obtained its name from the 1876 case of Baird v Moule’s Patent Earth Closet. The Earth Closet was then set in firmer foundations by the later case of See v Scott Paine in 1933. Both cases provided that if a party challenging a patent brought in a new ground of objection to the validity of that patent late in the proceedings, and the patentee consented to t [...]
