Wednesday, 25 August 2010

Bulls and horns, carts and horses -- but still no stay.

On what may be the first occasion on which both bulls and horses have been harnessed by any British judge for the purpose of deciding a patent appeal, the Court of Appeal for England and Wales gave a short and somewhat bucolic-sounding decision in Molnlycke Health Care v BSN Medical Ltd [2010] EWCA Civ 988. Lord Justice Jacob (with whom Lord Justice Patten presumably agreed) explained that this was an appeal against Mr Justice Floyd's refusal to stay an English patent action on the ground that proceedings were already underway in Sweden and that, accordingly, the case fell within Article 27 of the Brussels Regulation which runs like this:

"1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.".

Dismissing the appeal, Jacob LJ said that, when the matter first came before the Court of Appeal it was not entirely clear from the papers whether the Swedish court was seised with the same issue as that in the English proceedings: did the samples of BSN's products fall within the claims of Molnlycke's patent? Rather than ploughing through the various Swedish judgments [which, PatLit guesses, were delivered in Swedish] the Court would take the bull by the horns and contact the Swedish judge. The latter responded immediately and helpfully in that spirit of cooperation between European judges which could not have existed even 20 years ago [which, PatLit guesses, means that she replied in English]. She confirmed that, as the case stands right now, that question was not in issue. Ergo, no stay.

If, as Jacob LJ pointed out, the question does subsequently arise in Sweden, since it will do so only after the Court of England and Wales was seised with that issue, it is that court and not the Swedish one which will be first seised.

It was argued, relying on Article 28 of the same Regulation, that the Court of Appeal should adjourn this current appeal to await a decision from the Swedish court as to whether it wants to take jurisdiction over this question. That, said Jacob LJ, was putting the cart before the horse: "This court is seised with the issue. There is an infringement, according to Molnlycke, of the British patent. Molnlycke are entitled to proceed to bring that claim before the English court". The learned judge then observed:
"Whether it is sensible for the parties to proceed in two different jurisdictions is a quite different matter. That is a matter for them. If they wish to choose just one of them and have it decided there, they can of course do that. But it is not a matter for the courts to get involved in".
Says PatLit, this judgment is also characterised by a mysterious line which reads:
"There were other points too, none of which matter for present purposes. PRIVATE ".
If the points do not matter for present purposes, one wonders whether it wise to mention them.

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