28 January 2012

MMI Research Ltd v CellXion Ltd and Others

This is the second appeal in litigation that has come before Mr. Justice Floyd and the Court of Appeal on two occasions (see MMI Research Ltd v CellXion Ltd and Others [2009] Info TLR 35, [2009] EWHC 418 (Pat) (11 March 2009) and MMI Research Ltd v CellXion Ltd and Others [2011] EWHC 426 (Pat) (7 March 2011). At the first trial the judge held that the patent in suit was valid and that it had been infringed. The defendants appealed to the Court of Appeal on the basis of new evidence. Lords Justices Jacob and Kitchin allowed the appeal and ordered a new trial. At the second trial the judge considered the new evidence but held that it made no difference to his decision.

The Invention
The invention was a device that facilitates the detection of mobile phone numbers. It is used by police forces and security services to monitor the movements of suspected wrongdoers. It works by fooling the suspect's mobile into releasing a unique identifier known as an "IMSI". The phone releases its IMSI because it receives a powerful signal from a fake base station of the kind it would receive had its owner moved from the territory of one base station into another.  Virtual base stations were already known at the date the patent application.  The invention was the manipulation of the base station to emit a signal of such strength that any mobile phone in the area would be tricked into releasing its IMSI.

The New Evidence
The new evidence consisted of English and Italian materials together with a floppy disc that were alleged to have been supplied to the Italian Carabinieri and the German federal police before the filing date. The defendants alleged that those documents disclosed the invention before the application for the patent or at the very least that they rendered the invention obvious.   Mr. Justice Floyd was unimpressed.   He concluded that these disclosures did not reveal the invention. Nor did they make the invention obvious.   Even if they had, the materials were supplied to the Italian and German authorities in confidence.

The Second Appeal
In MMI Research Ltd v Cellxion Ltd and Others [2012] EWCA Civ 7 (24 Jan 2012) the defendants tried to rely in evidence given in the second trial to undermine the judge's finding in the first.  The Court of Appeal would have none of that.   However, a point that did succeed was a submission based on a concession  by the claimant's expert at the first trial that an article on phone location technology would have enabled a team that included a systems engineer to use a virtual base station to emit a signal sufficiently powerful to induce any mobile phone in the area to try to register its IMSI with that base station.   The trial judge appeared to have overlooked that point.   The Court of Appeal suggested at paragraph [78] of their judgment that that was probably because he had so many other points to consider.   Had the defendants concentrated on their best point Mr Justice Floyd might not have fallen into error.

Conclusion
So that was that. Having won on this last point the defendants succeeded at the end of the day.  In a press release published on the 25 Jan 2012 the Leeds company Datong Plc said that it had set aside £300,000 for its share of damages and costs. Had the case gone the other way I would have expected the financial consequences to have been even greater.  Its case like these that bring to mind Lord Esher MR's remark in Ungar v Sugg (1892) 9 RPC 113, 117 that "a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent".

Further Information
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