NIPC Law

The Court of Appeal's decision in Fresenius Kabi Deutschland GmbH and Others v Carefusion 303 Inc [2011] EWCA Civ 1288 (8 Nov 2011) is likely to make life just a little bit harder for patentees, especially the individual inventors and small businesses that I tend to advise and represent. It's tough enough trying to enforce a patent because a common if not the most usual defence is that the patent is invalid. The usual ground for challenging the validity of a patent is obviousness and lack of novelty. Obviousness means that the invention involves no inventive step having regard to the prior art (that is to say everything that has been made available to the public anywhere in the world) while lack of novelty means that the invention has already been invented. It was not easy to keep up to date with the prior art when most of the world's new technical literature was in English or some other European language but with the rapid growth of China, Korea and East Asian countrie...

I mentioned this litigation on the 12 and 21 Dec 2010 . In my latter case note I reported that the judge had found claims by Media CAT Ltd. against 27 defendants and listed them to come on before him on 17 January 2011. I advised those defendants to take legal advice and if possible appear by counsel and that is precisely what most of them did. Shortly before the 17 the claimant's solicitor tried to discontinue the claims against the defendants and vacate the hearing making clear that he intended to reissue the proceedings. The judge appears to have raised of his own motion the question whether the court's permission would be required for discontinuance and asked whether any step could be taken in the litigation without the consent of the copyright owner. The defendants' counsel indicated that they would be seeking wasted costs against the claimant's solicitors. The only thing that saved those solicitors from being ordered to show cause there and then was that their c...