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Showing posts from July, 2019

Patents - Emson v Hozelock

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Standard YouTube Licence

Jane Lambert

Patents Court (Mr Justice Nugee) E Mishan & Sons, Inc (t/a Emson) v Hozelock Ltd and others [2019] EWHC 991 (Pat) (17 April 2019)

This was a claim for the infringement of two patents:  UK patent GB 2 490 276 for an expandable hose assembly and European patent EP 2 687 575 also for an expandable hose assembly. There was a counterclaim for the revocation of those patents on grounds of obviousness and, for a while, anticipation. This action and counterclaim came on before Mr Justice Nugee.

The Invention
The invention for which those patents were granted was a new type of garden hose. Conventional ones are made of plastic in a number of layers bonded together. They tended to be heavy. bulky and difficult to store.  They also tended to kink.  The invention avoided those difficulties. The inventor, Michael Berardi, made a hose consisting of two tubes, one inside the other.  The inner tube which carries the water is made of an elastic material such as …

Choice of Forum - Ablynx NV and Another v Vhsquared Ltd and Others

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Jane Lambert

Patents Court (HH Judge Hacon) Ablynx NV and another  v Vhsquared Ltd and others [2019] EWHC 792 (Pat) (29 March 2019)

In Litigating in London after Halloween26 July 2019 NIPC Brexit, I discussed the likely consequences of the intended repeal of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 if the Johnson administration withdraws the United Kingdom from the European Union without a withdrawal agreement in accordance with art 50 (2) of the Treaty of European Union.  One Richard de Vere wrote:

"I almost feel silly asking, I read the blog twice and it’s not through a lack of trying... but can you simplify this and give some examples of how it will impact smaller businesses?"

I replied:

"You have asked for a simple example. Art 36 (1) of reg 1215/2012 provides: "A judgment given in a …

TQ Delta, LLC v ZYXEL Communications - A Postscript

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Jane Lambert

On Monday I discussed Mr Justice Henry Carr's judgment in TQ Delta, LLC v ZYXEL Communications Ltd and Another [2019] EWHC 562 (Pat) (11 March 2019) and mentioned the injunction he granted in  TQ Delta LLC v Zyxel Communications Ltd and another [2019] EWHC 745 (Pat) (18 March 2019) (see Standard Essential Patents - TQ Delta, LLC v ZYXEL Communications Ltd22 July 2019). Since then.  Since then, there have been two further hearings in the proceedings: one before Mr Justice Birss on 17 April ( TQ Delta, LLC v Zyxel Communications UK Ltd and another No 3 [2019] EWHC 1089 (Pat) (17 April 2019)) and the other before Mr Recorder Campbell QC on 19 June 2010 (see TQ Delta, LLC v Zyxel Communications UK Ltd and another [2019] EWHC 1597 (Pat) (19 June 2019)).

History of the Litigation
In his judgment, Mr Justice Birss noted that the action had begun in 2017 and that a technical trial and a non-technical trial had been ordered at the case management conference. The technical trial…

Standard Essential Patents - TQ Delta, LLC v ZYXEL Communications Ltd

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Jane Lambert

Patents Court (Mr Justice Henry Carr) TQ Delta, LLC v ZYXEL Communications Ltd and another [2019] EWHC 562 (Pat) (11 March 2019)

This was a patent infringement action.  The patents in suit were European patent number EP1453268 for multicarrier communication with variable overhead rate and European patent number EP1792430 for CRC counter normalisation. The claimant alleged that these are standard-essential patents "SEPs") - that is to say, it is impossible to comply with ITU recommended telecommunications standards for the transmission of data without using those patents.

The Parties
The claimant describes itself as "a technology development and licensing company aimed at providing needed solutions for the communications industry and beyond." The homepage of its website adds that its technical investments span nearly two decades of contributions and innovation in the field of communications. its patented inventions and technologies are used in leading pr…

Supplemental Protection Certificates - Eli Lilly and Co. v Genentch Inc

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Jane Lambert

Patents Court (Mr Justice Arnold) Eli Lilly And Company v Genentech, Inc No. 2 [2019] EWHC 388 (Pat) (1 March 2019)

One of the issues before Mr Justice Arnold when he tried Eli Lilly and Company and others v Genentech, Inc [2019] EWHC 387 (Pat) (1 March 2019) was whether Genentech was entitled to a supplemental protection certificate ("SPC").

A guidance note from the IPO published on 16 May 2014 and last updated on 27 June 2019 describes an SPC as a "form of IP that extends the protection of patented active ingredients present in pharmaceutical or plant protection products." The policy behind SPCs is as follows:

"Pharmaceutical or plant protection products need regulatory approval to be sold in the UK and must obtain:
a marketing authorisationor product licence If your patent protects the active ingredients used in these products, this requirement can delay you using the patent.

A Supplementary Protection Certificate (SPC) compensates for the delay.…

Patents - Eli Lilly v Genentech

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Jane Lambert

Patents Court (Mr Justice Arnold) Eli Lilly and Co. and others v Genentech Inc [2019] EWHC 387 (Pat) (1 March 2019)

This was a claim for the revocation of Genentech Inc.'s European patent EP1641822 for heterologous polypeptides and therapeutic uses thereof on grounds of want of novelty, obviousness and insufficiency and a declaration of non-infringement of the patent; Genentech counterclaimed for infringement alleging that Lilly's product Ixekizumab marketed under the trade mark Taltz infringed its patent. The action and counterclaim came on before Mr Justice Arnold as he then was. The judge also had to decide whether Genentech was entitled to a supplemental protection certificate in relation to the patent. His lordship dealt with that issue in a separate judgment (see Eli Lilly And Company v Genentech, Inc No. 2 [2019] EWHC 388 (Pat) (1 March 2019) which I discussed in Supplemental Protection Certificates - Eli Lilly and Co. v Genentech Inc. 18 July 2019).

Com…

Confidentiality Clubs - Illumina v TDI Genetics

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Patents Court (Mr Justice  Mann) Illumina, Inc. and Another v TDL Genetics Ltd and Others [2019] EWHC 79 (Pat) (22 Jan 2019)

CPR 31.6 requires a party to litigation to disclose to his or her opponent not only the documents on which he or she relies but also the documents which adversely affect his or her own case or that of another party, support the case of another party or any document that he or she is obliged to disclose by a relevant practice direction. 

Sometimes such a document contains a trade secret or other confidential information.  When that happens the court is presented with what Lord Justice Buckley called in Warner-Lambert Co. v Glaxo Laboratories Ltd. [1975] RPC 354, 356 "a balance or conflict of expedients." In that case, the defendant asserted that the documents that the claimant sought to inspect contained "secrets of considerable commercial value".  The learned lord justice continued:

"The [claimant] is entitled to be protected against inf…