Tuesday, 24 June 2014

When it's too late to seek a stay ...

Kennametal Inc v Pramet Tools SRO and Associated Production Tools Ltd [2014] EWHC 1438 (Pat) was decided in the Patents Court, England and Wales, back at the beginning of April, but this blogger hasn't had time to deal with it earlier.

In short, Kennametal applied to stay an order revoking a patent pending the outcome of proceedings to amend it in the European Patent Office (EPO). The UK patent had been held invalid and Kennametal did not apply for permission to appeal that decision. However, Kennametal submitted that the court should follow the recent Court of Appeal decision in Samsung Electronics Co Ltd v Apple Retail UK Ltd [2014] EWCA Civ 250 [noted by the IPKat here], in which that court adjourned the hearing of an appeal against a UK judgment pending the conclusion of an amendment application that had been made to the European Patent Office (EPO). No, said Pramet: the reasoning in Apple did not apply, because in that case there had been concurrent proceedings in the UK and the EPO -- which was not the case here.

Henry Carr QC, sitting as Deputy judge, refused the application, finding that the situation in Apple was completely different. In this case, the UK revocation proceedings were dead and buries: there had been a final judgment and it was not the subject of an appeal. No attempt was made to seek these amendments in the course of those proceedings and it there was no justification for awaiting the uncertain outcome of the EPO proceedings before revoking the patent.

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