09 February 2007

Patents: BlackBerry Appeal Dismissed

One of Alex Weston's slides in her presentation to Venturefest listed BlackBerry and Viagra as things that had been patented. "But haven't some of those patents been revoked?" I blurted out very rudely. "Yes" she agreed and carried on with her presentation. But the very day that Alex gave her talk the Court of Appeal gave judgment in Research In Motion UK Ltd v Inpro Licensing SARL [2007] EWCA Civ 51 (7 Feb 2007).

As Lord Justice Jacob remarked at paragraph [3], it was not suggested that any important or even novel issue of law was raised by the appeal. The appeal was on obviousness and the law was set out clearly enough by the House of Lords in Biogen v Medeva [1997] RPC 1. The submission was that Mr Justice Pumfrey had misapplied or failed to apply settled principles at first instance. After considering all the prior art relied upon, the Court concluded that he had.

The only other point to note is procedural. Mr Justice Pumfrey had expressed the view that Mr Justice Laddie's order for the case to be decided by the streamlined procedure had been inppropriate. He also disagreed with Mr Laddie 's suggestion that whenever one side proposed such a procedure, the onus lay on the other to raise a convincing objection to its use. The Court agreed with Mr Justice Pumfrey:
"The decision to use that procedure must depend on all the circumstances of the case, which in particular includes its commercial importance, degree of complexity, the commercial and financial position of the parties and so on. In essence the decision is one of proportionality. By saying this, it should not be thought that I regard the streamlined procedure as one to be used rarely. On the contrary there will be – or should be – plenty of smaller cases where it will be the best way forward. And parties should always consider (and discuss) whether it would be sensible to use it whatever the size of the case."

All very well, perhaps, when all the parties have plenty of dosh but part of the overriding objective is to put the parties on an even footing and to deal with a case in ways that are proportionate to the financial position of each party.

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