28 November 2006

Nice to be Back!

A lot has been going on in intellectual property over the last few months.

In patents, the Court of Appeal has given judgment in Macrossan's Application [2006] EWCA 1371 which has led to a new Patent Office practice note on patentable subject matter and has delivered the reasons for its judgment on the rare but very important question of the role of scientific advisors in Halliburton Energy Services Inc v Smith International (North Sea) Ltd. and others [2006] EWCA Civ 1599 (24 Nov 2006). Mr Justice Kitchin has considered whether the matter disclosed in the specification of a patent extended beyond that disclosed in the application as well as issues of novelty and obviousness in Merz Pharma GmbH & Co. KGaA v Allergan Inc. [2006] EWHC 2686 (Pat) (30 Oct 2006). Encouragingly for the legal profession, he decided an old fashioned application for an interim injunction in Les Laboratoires Servier and another v KRKA Polska SP Zo.o and another [2006] EWHC 2453 (Pat) (3 Oct 2006) which was a procedure that appeared to be in danger of extinction. Mr Justice Mann has given judgment in a rather awkward point involving allegations of perjury in Cinpres Gas Injection Ltd v Melea Ltd [2006] EWHC 2950 (Ch) (23 November 2006). BAILII has also reported some interesting cases from the Patents County Court one of which is Judge Fysh QC's judgment in Weatherford UK Ltd and Another v BJ Tubular Services Ltd and Another [2006] EWPCC 49 (20 February 2005).

In designs there is some interesting discussion on the "method or principle of construction" exception in Bailey and Another v Haynes and Others [2006] EWPCC 5 (02 Oct 2006) which is another Patents County Court decision by Judge Fysh.

Sitting in the High Court, Judge Fysh QC delivered a very interesting judgment involving exhaustion of rights and sales to the EEA over the internet in KK Sony Computer Entertainment and another v Pacific Game Technology (Holding) Ltd [2006] EWHC 2509 (Pat) (18 Oct 2006). The substantive law in this case related to trade marks and copyrights. Also in copyright is Mr Justice Lindsay's very long and very intricate judgment in Peer International Corporation and others v Termidor Music Publishers Ltd and others [2006] EWHC 2883 (Ch) (16 Nov 2006) over a large repetoire of Cuban music, Fidel Castro and lots of other goodies. Turning back to trade marks, there is the ECJ's judgment in Pardo v OHMI-Quimi Romar (YUKI) [2006] EUECJ T-278/04 (16 November 2006).

From Scotland there are some interesting cases on restraint of trade, Lord Hodge's judgment in Calor Gas Ltd v Express Fuels (Scotland) Limited and another [2006] ScotCS CSOH_170 (02 Nov 2006) and Lady Clark's in Dunedin Independent Plc v Welsh [2006] ScotCS CSOH_174 (14 Nov 2006). It is interesting how so much of our law on restrictive covenants and restraint of trade generally has come from that corner of the United Kingdom. Scots don't seem to like competition much, do they.

Also from Scotland is an interesting computer supply spat from the Glasgow sheriff court (Local Planet Solutions Ltd v. Ritchies HGV Training Centre Ltd [2006] ScotSC 49 (19 May 2006) which deserves national attention.

Just before BAILII shut down for a few days this morning I took the precaution of downloading the transcripts of all those decisions so that I have sufficient material (if not necessarily time) for pontification until the return of that enormously valuable website on 5 Dec 2006. I am very sorry that this blog has not been updated for quite a log time. There are a number of reasons for that. One is that I have been very busy thanks largely to Microsoft which seems to be suing all sorts of people all over England. I have picked up 5 cases just like Microsoft v Ling. I had been tempted to migrate to Writely and Open Office but I think I may upgrade to VISTA and the new Office package when it comes out. Another reason is that I have a publisher's deadline which is coming up for its first anniversary (chicken feed I know when you look at more weighty tomes but then they are more weighty tomes in every sense of the word). Finally, 21 of my former colleagues and I have had a rather nasty quarrel with our former head of chambers which has taken up the very little that remains of my spare time. My readers will probably hear about it from sources other than me so I will keep my trap shut about it for the time being.

So you can imagine what my house is like with all these demands on the time - door handles not replaced on the kitchen door because I can never find time to do them, leaves inches thick on the back lawn, wallpaper beginning to sag from the ceiling in the living room. Never marry a chancery - much less an IP - barrister.

Where to begin? Well I should remind colleagues from the patent bar the IP Bar Association's AGM takes place at 17:00 at 3 New Square today. I should like to attend but work is piling up just as fast as I can shift it and it does take one hell of a long time to get around The Smoke (aka London) these days. When I attended a UCLA friend's Thanksgiving lunch the day before yesterday it took 50% longer to hack the through London traffic the very short distance between the end of the M1 and my friend's home in Mitcham than it did to drive the 200 miles from the North.

I think probably the best start is Macrossan as it is an important case. My Australian solicitor friend, Simon Hart, who has been assisting in this litigation has just sent me a press release from Marks & Clark (very modestly describing itself as "the UK’s leading Patent and Trade Mark attorneys") announcing an application for leave to appeal to the House of Lords from the Court of Appeals decision mentioned above. John Collins is the co-ordinator of the team that will formulate the application, It will be handled by Marks & Clark's solicitors (formerly Blair & Co.) and Alistair Wilson QC will be their counsel. Apparently Macrossan will pay court fees but not the team's professional fees. Why the generosity? John Collins puts it this way in the press release:
“This is an area of great public interest, especially given the failure of the EU directive on computer-implemented inventions to restore a pan-European consensus. Moreover, the Court of Appeal’s referral to the Enlarged Board of Appeal is an illustration of the level of discomfort surrounding the divergence between the UK and European approach to inventions of this nature and the recognition of intellectual property. We hope this significant case brings to an end some of the confusion, where the EU directive and continued divergent IP practices have failed.”

So there it is, ladies and gentlemen. We shall watch the House of Lords' website with interest.

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