Monday, 28 February 2011

PCC 18: a digression around the Central London County Court

The PatLit PCC Series, kindly supplied by the Chartered Institute of Patent Attorneys (CIPA), seeks to explain how litigation works in the recently-revamped Patents County Court (PCC) for England and Wales.  In this episode, the 18th, CIPA President Alasdair Poore describes some of the physical and practical aspects of issuing proceedings in the PCC:
Readers will recollect that Cautious has issued proceedings against IPOff in the PCC; IPOff have served a defence, and Cautious are in the process of preparing a reply.  In the meantime, Cautious thought it was a smart move to issue proceedings against Cautious in the Intellectual Property Court (ie the High Court) for alleged threats made by Cautious to one of IPOff’s allegedly potential customers.  While preparing the reply, Cautious’s patent attorney is musing about writing to IPOff’s solicitor to say that issuing proceedings in the Intellectual Property Court was really not a very sensible idea and to explain the process for issuing proceedings in the PCC.  By the way, this is not necessary if the counterclaim is against the claimant (and only the claimant), as in this case (CPR 20.4, CPR 20.7).

He has helpfully included this summary written by one of his colleagues:

"In order to issue a PCC claim you need:-

    (1) A cheque for the court fee (which varies greatly, depending on whether damages are being claimed (see, at Civil and Family Court Fees). It should be payable to 'HM Courts Service' (HMCS). Modern means of payment (credit/debit cards etc.) are not accepted: remember, this is the government you are dealing with.
    (2) Copies of the claim (the claim form, pleadings, annexes etc.). You need one for the court, one for your file and one for each defendant. It is a good idea to take a spare too.

Park Crescent -- but there's nowhere to park ...
Although the PCC is on Fetter Lane, in order to start a claim in the PCC it is necessary to go the the Central London Civil Justice Centre, Park Crescent, London W1N 4HT (Regents Park or Gt Portland Street Underground Stations). Despite its name, this "centre" is in two buildings on opposite sides of the crescent. You need to go to No. 14. Until recently, it was necessary also to go to No. 26 to complete the process, but this has now changed. Unfortunately, not all of the staff at No. 14 know this, so you may be told to go to No. 26 at some point. Do not listen. You will be sent straight back.

After going into No 14 Park Crescent, you will need to go through a metal detector arch and will then be directed to the Public Counter on the first floor. Expect to have to wait in a queue for some time. When you get to the counter, your payment will be taken and you will be given a receipt. The copies of the claim form will then be stamped to confirm that the fee has been paid before being collected by a member of staff and taken elsewhere to be processed. You can then take a seat and wait (hopefully about 15 minutes).

All but one of the sets of papers will then be returned to you (unless you ask the court to serve the defendant's copies.  Entrusting HMCS with this task is generally thought unwise (see for example the problems in Media CAT v A. Defendant [2010] EWPCC 17, para 37, although more problems encountered those cases later on!. They will each now bear a stamped court "seal" and a case reference ('claim number'). You should also be given a Notice of Issue (i.e. a form confirming that proceedings have been issued and giving the claim number). You may also get a helpful note "Arrangements for the Patents County Court".
The next step is to serve the claim on the defendant(s) (CPR 7.5). You need to send each of them one of the sealed copies of the claim, together with a "response pack" (a bunch of forms obtainable at It makes sense also to enclose a copy of the "Arrangements" note. The rules on service are not covered here.

Having served the claim, you need to file a Certificate of Service at the PCC. Apparently it is also a good idea to send the PCC a copy of the claim, just in case".

Tuesday, 22 February 2011

Global IP Index survey: still time to participate

There are only a few days to go for you to participate in the survey from which the third Taylor Wessing Global Intellectual Property Index (GIPI3) will be compiled.  For those readers who are not familiar with this extremely useful piece of research, the Taylor Wessing GIPI3 team explains:

"... The GIPI1 and GIPI2 reports provided a ranked and fully analysed review of the IP regimes of over 20 jurisdictions globally. ...
Completing the GIPI survey can be as quick and easy as you choose - potentially minutes if answering on a handful of jurisdictions and one IP right. This year the survey has a number of new features:

* you can answer anonymously if you prefer (nb if you give your name it is not released publicly and we do not share data with others)
* there is a new section on data privacy/protection (replacing the domain name section)
we look at unregistered trade mark rights
* we consider the adequacy and alignment of IP laws for the new media era.".
The two previous surveys contained a wealth of comparative data regarding the litigation of patents across the surveyed jurisdictions.  It is hoped that this year's survey will build on them, enabling readers to get not so much a snapshot of litigation conditions but an idea of their progress through time.

To complete the survey click here

GIPI1 here
GIPI2 here

Monday, 21 February 2011

PCC 17: Victims of their own success?

The PatLit PCC Series, kindly supplied by the Chartered Institute of Patent Attorneys (CIPA), seeks to explain how litigation works in the recently-revamped |Patents County Court (PCC) for England and Wales.  In this episode, the 17th, CIPA President Alasdair Poore takes up the story of Cautious Co and its pursuit of its foe, IPOff Ltd, which it alleges has infringed the intellectual property rights in its robotic octopus. He asks: could their commercial success put Cautious Co into the High Court?
Cautious have issued proceedings for patent and design right infringement in the PCC against IPOff.  IPOff have just served their defence, asserting that the patent and unregistered designs are not infringed, the alleged invention is blindingly obvious, as they put it, and the designs are commonplace and don’t create a different impression from the average octopus. Cautious’ patent attorney writes:
“Dear Cautious, I enclose a copy of IPOff’s defence and counterclaim.  Some things we must think about:
First, we need to consider filing a reply to IPOff’s defence, and we must file a defence to their counterclaim.  The time limit for doing this is 28 days from the date of service [Differs from the Intellectual Property Court: CPR 63.22(4) cf CPR 63.7 for patent and registered design cases].  We do not necessarily have to submit a reply – it really depends on whether we wish to rely on new arguments or facts.  However, in this case, as in most IP infringement cases, IPOff also counterclaim for a declaration that your rights are invalid.  As we have to respond to that, we will in any event file are reply to their defence. 
Secondly, we need to prepare for the Case Management Conference (commonly referred to as the “CMC”).  Again we are required to apply for a date for the CMC within 14 days of the date the defence was served [PD63 5.3].  In the PCC the CMC is very important.  The judge determines what issues he/she thinks are the key issues and decides what additional evidence etc. each party will be permitted to bring in order to prove these issues. Only very exceptionally will further evidence be permitted [CPR63.23(2)].  It is important therefore to ensure that we clearly identify any evidence we need to bring before the judge.  (It is also our opportunity to persuade the judge that IPOff should not be permitted to extend the evidence – it will shape the case for the future). 
Let's now address their defence of the patent infringement claim.  They deny infringement.  We have already said what we need to say here and we do not need to add any more at this stage.  They also assert invalidity of the patent for three reasons: prior art combined with common general knowledge makes the invention obvious; that the invention is a computer programme and therefore not patentable; and that the invention does not work (ie it is not sufficiently described so as to enable a person skilled in the art to perform it).  This is because they say it does not produce the confident predictions of results of football matches.
We will say our case will be that it is not obvious.  However, you may also want to rely on your extraordinary commercial success.  If so you have to say so (now) [PD63 4.6] and you have to provide specific information if you wish to do this [PD63 6.3] either now or when ordered:  the identity of each product, sales over a convenient period of the product, sales over an equivalent period of equivalent products marketed before your product, and marketing and promotional spend of each of those products.  Bear in mind that in practice however, commercial success has rarely been successful; and relying on it may make the case more complicated and significantly expensive for you – and possibly might be a ground for the judge to say that it should be transferred to the Patents Court.
In relation to reply on this subject we merely repeat what we say in the defence, and that therefore the patent is not invalid.
[to be continued]
Cautious’ patent attorneys letter explains that really the reply and defence to counterclaim is pretty simple.  However, it does highlight that, when choosing the PCC/Patents Court, there are a wide range of issues – like commercial success – that need to be considered at an early stage.   A key element of strategy is to consider whether they are prepared to go for a cut-down case and risk missing out some elements or they need to rely on fuller examination of the facts.

A further question:  the general principle is that, where possible, the court will determine the claim solely on the basis of the statements of case and oral submissions [PD63 31.1]. That means that, clearly where additional facts are going to be relied on (for example in relation to the question of obviousness, such as a predisposition to do something different) these should be included.  It is not really clear whether further argument is necessary at this stage.  If a reply is submitted, CPR 63.20(1) would seem to suggest that it should be included – although for trial oral submissions will be permissible.  However, concise argument explaining why the defence is wrong, place them in front of the judge earlier, and also gives the judge more of a picture at the CMC.
More on the reply and CMC in next week’s letter.

Half a million PCC damages cap likely from 14 June

The PatLit weblog has learned today that the United Kingdom's Intellectual Property Office (IPO) has published the Government Response to its consultation on limiting the value of claims heard in the Patents County Court (PCC). The post-consultation Final Impact Assessment has also been published here. According to a media release from the IPO
"The Government consulted on the appropriate limit in relation to claims heard in the PCC and indicated that the limit identified through the consultation process would be implemented in two stages: firstly in relation to disputes within the court's 'special jurisdiction' i.e. patents and designs, and then shortly afterwards in relation to copyright and trade marks issues; its ordinary jurisdiction.

The outcome of the consultation was that over 75% of responses supported the Intellectual Property Court Users Committee (IPCUC) proposal that £500,000 was the appropriate limit on the value of claims heard in the PCC [75% looks good but this author would have expected a higher figure, given what seemed to him to be a near-absolute consensus at the time of the IPCUC proposal]. There was also support for considering the level again as part of a post-implementation review.

Therefore, as required by the Copyright, Designs and Patents Act 1988, section 288(5), the Government has laid an Order in Privy Council in relation to the court's 'special jurisdiction' before both Houses of Parliament on 16 February 2011. It is anticipated that this order will commence on 14 June 2011. A further order relating to the court's ordinary jurisdiction is expected to be laid on the Common Commencement Date October 2011.

Additionally, the Government proposes to hold a post-implementation review beginning June 2014".

Thursday, 17 February 2011

WIPO ADR survey addresses some patent litigators' interests too

Who's talking about patent disputes? Some
people are even arguing over how to
complete the WIPO online survey
PatLit received this email from WIPO yesterday.  Its contents are self-explanatory.  If you are involved in the resolution of disputes arising from technology transactions, it may concern you -- and although it is aimed at ADR some of the questions either point to litigation directly or deal with negotiated settlements of disputes which will have reached the stage at which litigation has commenced.

Please take a look at the survey and, if you can, complete it.  Though some of the methodology looks a bit shaky, it will provide WIPO with some relatively meaningful data, which can only help to improve WIPO's (and our own) understanding of the ways in which technology-related disputes are being addressed.

The WIPO email reads as follows:
"The World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center is conducting an International Survey on Dispute Resolution in Technology Transactions (

The questionnaire has been developed with the support of the International Association for the Protection of Intellectual Property (AIPPI), the Association of University Technology Managers (AUTM), the Fédération Internationale des Conseils en Propriété Industrielle (FICPI) and the Licensing Executives Society International (LESI) and in collaboration with in-house counsel and external experts in technology disputes from different jurisdictions and business areas. 

This Survey is addressed to companies, research organizations, universities, government bodies, law firms, individuals and other entities involved in technology licensing and technology disputes. A response from your legal or patent department, technology transfer office or other internal unit dealing with patent and technology licensing and/or litigation/dispute resolution is key to the success of the Survey. The WIPO Center would very much appreciate your distributing this Survey within your entity where appropriate. If you are working in a law firm, we hope that you are prepared either to complete this Survey on behalf of one of your clients most relevant in this context, or to distribute this Survey to selected clients.

The WIPO Center will provide you as a participating respondent with a preview of the Survey results prior to full publication in a WIPO Center report.  We would also be pleased to offer to you or to one of your colleagues access to WIPO Center Workshops at a considerably reduced registration fee ( 

The Survey webpage ( provides any completion guidance you may seek.  You may also contact the WIPO Center at or by phone in Geneva (+41 22 338 8247) or Singapore (+65 6225 2129). 

We are fully aware that your time is precious and would truly appreciate your willingness to participate in this Survey.

Yours sincerely,

Erik Wilbers
WIPO Arbitration and Mediation Center"

Wednesday, 16 February 2011

Is proof of knowledge necessary in induced infringement claims?

Stephen Richer (Washington Legal Foundation) has emailed with an item for PatLit -- this analysis was published last Friday by Washington Legal Foundation.  Titled "Supreme Court To Address Standard For Induced Patent Infringement – An examination of Global-Tech Appliances Inc. v. SEB, S.A." and written by Brian Pandya (Wiley Rein LLP), this not explains that the issue at stake is whether 35 U.S.C. sec. 271(b) carries a scienter requirement (i.e.that it must be necessary to prove that an alleged infringer has actual knowledge of the patent before he can be liable for inducing patent infringement. The note adds:
"...  the issue of induced infringement is significant to the business community, particularly technology companies that have faced lawsuits alleging that they are inducing patent infringement".
The US Supreme Court hears arguments next week, on 23 February.

Tuesday, 15 February 2011

PCC Page 16: How big are the patent attorney’s boots?

In this, the 16th in the series of Patents County Court (PCC) Pages, we continue the saga of the litigation between Cautious Co and its arch foe IPOff Ltd, which Cautious accuses of infringing various intellectual property rights in its robotic octopus.  PatLit thanks the Chartered Institute of Patent Attorneys (CIPA) and in particular its President Alasdair Poore, for supplying these episodes.  This week's PCC Page considers whether it might be possible for the defendant IPOff to inconvenience Cautious Co by ensuring that Cautious would no longer be able to engage a patent attorney in the PCC?
IPOff has sent details of their defence to their solicitor.  While he/she is preparing a formal defence ready for IPOff’s director and others who have personal knowledge of the matters set out to sign the statement of truth (and incidentally preparing the proposed claim in the High Court for threats – see PCC pages 14 and 15), IPOff and this blog is relaxing.  However, given their desire to make life difficult for Cautious Co’s patent attorney, perhaps IPOff has missed a trick.  Could IPOff have added in some additional element to the claim which would have meant that the case could no longer be handled by a patent attorney in the Patents County Court – rather than hoping that the claim for threats will not be transferred from the High Court to the PCC?

In the light of the recently reported Atrium case (Atrium v DBS [2011] EWHC 74 Pat – not yet on BAILII), on the scope of rights of patent attorney, it is perhaps worth a reminder of the scope of jurisdiction of the PCC.  Atrium has been discussed on a number of blogs, including Patlit (Jan) and Patlit (Feb) and on the Hogarth Chambers website, so no detailed comment will be made here.  (See also Chris Ryan’s comment on the second (Feb) blog, relating to a PAL’s right to act on restoration of a company for the purpose of transferring its trade marks).  However, it does make clear that a broad interpretation should be given to the scope of a patent attorney litigator's rights, and that these cover claims in relation to agreements relating to inventions, as well as pure intellectual property infringement claims.  This is of course relevant to some aspects of claims in the PCC, as noted below.

The jurisdiction of the Patents County Court is divided into two areas: matters within the “special jurisdiction”; and other cases which can be heard in the county courts. 

The relevance of the special jurisdiction is that patent attorneys who are not patent attorney litigators can only conduct (or act as advocates in) cases within the special jurisdiction.  This is set out in s.287, Copyright, Designs and Patents Act 1988, and Article 3 of the Patents County Court (Designation and Jurisdiction Order) 1994.  The former provides the power to specify the special jurisdiction and the latter specifies that jurisdiction:  “to hear and determine any action or matter relating to patents or designs over which the High Court would have jurisdiction, together with any claims or matters ancillary to, or arising from, such proceedings”.  There is a proposal as part of the reforms in the PCC to change this to cover other intellectual property litigation, but for the moment, it remains limited to patents and designs and ancillary matters etc. 

The scope of this was discussed in a rather older case, McDonald v Graham [1994] RPC 407 (under the 1990 designation order).  At page 431 et seq., Ralph Gibson LJ discusses the application of the provisions to a copyright claim which was brought in the same proceedings as a patent claim, and confirmed (p 435) that the term “ancillary” was not to be interpreted narrowly, and that “such a limitation would give rise to difficulties in the conduct of proceedings in the Patents County Court which cannot have been intended to be the intention of Parliament”.  However, it is worth noting that there is a threshold: in order for the PCC to have jurisdiction in other matters, there must be proceedings relating to a patent or design.  Note also that, in that case, Gibson LJ would not be drawn on whether “design” was limited to statutorily defined design rights, although he expressed the view that that was likely to be the case.

Atrium remains relevant to the PCC of course.  The PCC can hear cases outside the special jurisdiction.  These include cases which county courts can hear, including specifically intellectual property cases such as copyright and passing off cases, and as a result of The High Court and County Courts Jurisdiction (Amendment) Order 2005, which amends the 1994 Order, trade marks.   A patent attorney litigator can act in such intellectual property cases, and, in the light of the Atrium decision, these are not just restricted to intellectual property infringement cases, but also include cases where the protection of intellectual property may be relevant such as those involving licence agreements.

So IPOff would have had difficulty designing a claim which a patent attorney could not act on in the PCC, bearing in mind that Cautious Co’s principal claim is for patent and design right infringement, and it seems likely that other claims/counterclaims would be regarded as ancillary to such proceedings.

Wednesday, 9 February 2011

PCC: new Wikipedia draft available for comment

The UK's Intellectual Property Office has drafted an update to the Wikipedia entry for the Patents County Court, England and Wales, and welcomes comments from interested parties. You can inspect the draft here and make comments.

PatLit is thrilled that the IPO has taken this initiative, which will help keep the public at large -- including prospective small and medium-sized litigants -- well informed about the court's current status and prospective utility.

Monday, 7 February 2011

PCC Page 15: How secret is my technology?

In this, the 15th in the series of Patents County Court (PCC) Pages, we continue the saga of the litigation between Cautious Co and its arch foe IPOff Ltd, which Cautious accuses of infringing various intellectual property rights in its robotic octopus.  PatLit thanks the Chartered Institute of Patent Attorneys (CIPA) and in particular its President Alasdair Poore, for supplying these episodes.  To continue the tale:
Innocent Pilates, director of IPOff wrote to his solicitor last week suggesting that threats proceedings brought in the High Court (Intellectual Property Court) would be an effective way of pushing Cautious off the rails.  As set out below he also has some things to say in relation to IPOff’s defence of the claim before the PCC for patent and unregistered design right infringement:
Dear xxxx,

[discussion of threats etc ...]
In the meantime here’s the statement you wanted to show that Robot Octopus had nothing to do with Cautious – it's our independent design.  It’s not as though they are even very similar.  I’ve done a note highlighting the differences we put in, though I must say that their table showing the similarities is pretty impressive.  Just that those features are all old hat. 
Also on the patent issues, I don’t want to supply a description of our software to Cautious.  We have some really good ideas and they will just copy them; and, in this field, if our customers think that another player has the same ideas for predicting winners, they will not want our product anyway.  So you will have to tell the judge that we can’t provide the particulars.
Otherwise I have set out the comments on the prior art – added them to the claim table used by Cautious as you requested, although I think that some of their “elements” are just contrived to make the claims look as though they cover our product.  I’ve also done a note of what’s blindingly obvious in the field [a.k.a. common general knowledge].  … . 
This letter throws up a number of issues for IPOff’s solicitor.

Firstly, it appears that IPOff’s design is not independent.  Why else would they mention the differences they have “put in”.  This raises a potential question as to whether IPOff’s solicitor should be involved in preparing a statement of case which effectively relies on independent development.  As is often the case this may simply be a misunderstanding of what IPOff meant.  The solicitor is probably not under a duty (to the Court) (Code of Conduct for Patent Attorneys, applicable to patent attorneys, Rule 5 read with Rule 14) to find out the true position from IPOff – although they might be negligent to the client if they failed to do so, and advise on it.  However, if they do find out that in fact the client did not independently develop the design, but used Cautious’ product and designed around it, it is clear that the solicitor should not be involved in putting a case which is inconsistent with that, even in a statement of case signed by the client (Code of Conduct for Patent Attorneys, applicable to patent attorneys, Rule 14, and (Patent Attorney Litigator Code of Conduct, XI(a)).  Of course there could be a middle ground in which the original design was independent, but modifications were made in the knowledge of Cautious design.
Secondly, there is a legitimate concern about confidentiality of technology.  This has been addressed in previous patent cases – the Court agreed relevant technology be disclosed only to the advisors or experts (Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354, and see the discussion in eg Koger Inc v James O’Donnell [2009] IEHC 385).  However, the court is likely to take a critical view.  Is this really necessary and appropriate.  A party is as a general rule, entitled to see the case against them (see cases cited above and Roussel Uclaf v Imperial Chemical Industries Plc [1990] RPC 45 at 54).  In High Court proceedings a party is normally be required to give disclosure (discovery), and information supplied under disclosure obligations is subject to specific confidentiality obligations (CPR31.22(1)).  It is important to ensure that at least these obligations are in place in relation to a confidential process description as they do not automatically apply to information given voluntarily.  In some cases it may be appropriate to go further, and restrict information to advisors, but, unless the other party agrees, the Court will need to be convinced.
Thirdly, in relation to setting out the facts, matters and arguments, we can see there is a danger of different issues becoming confused.  The issues of independent development (which require either clear evidence of lack of access, or a good explanation of how similarities occurred), substantial reproduction and that the design is commonplace (for the UK unregistered design) and overall impression for validity and infringement purposes) are all tied together in the first paragraph of IPOff’s letter.  It is important to keep these separate in a statement. No end of difficulty is created in statements of case where an attempt is made to plead two slightly different issues at the same time.  Think about: “assuming Cautious disagrees, how would they respond to each issue”?  If you mix up issues, the response may well be mixed up and then it can become very difficult to extract what are the real differences between the parties.
Finally, at least two elements of IPOff’s defence – that the designs are commonplace and that they are based on common general knowledge -- are elements which Mr Pilate may well not be able to say from his personal knowledge (and nor can anyone else from IPOff).  They think this is the case and should (by now) have talked to an expert who will be able to confirm it.  It could be difficult for Mr Pilate to sign a statement of truth in that case, and perhaps the right approach is to foreshadow the evidence by saying that this is the defendant’s case or that they will rely on or contend that this is the case, to be followed by evidence at the appropriate stage.

Friday, 4 February 2011

Patent litigators and fuzzy edges: CIPA speaks

The Chartered Institute of Patent Attorneys (CIPA) has just issued a press release concerning the recent dispute between Atrium and DSB, which PatLit noted here last week.  This case is extremely important on account of the manner in which it resolves some questions surrounding patent attorneys’ litigation rights. The press release reads, in relevant part:
"A High Court decision has made it clear that the way is open for patent attorney litigators to conduct cases involving disputes over licence agreements and related intellectual property rights.  This confirms that businesses can be represented by a wider range of professional lawyers, not just solicitors. 
In a High Court case between technology companies Atrium and DSB, the judge has ruled that patent attorney litigators are entitled to act where the case involves the broad area of ‘protecting inventions’ – including royalties payable under agreements relating to the inventions.  They are not limited to a narrow interpretation of ‘protecting inventions’, such as cases involving prosecution and enforcement of patents and related intellectual property. 
Mr Justice Lewison’s ruling in the High Court on January 21 found that the proceedings, to determine whether royalties were due under an agreement, fell within the scope of the Higher Court Regulations of the Chartered Institute of Patent Attorneys (CIPA).  It clears away possible confusion about Patent Attorney Litigators’ rights to conduct litigation in the High Court.  
Commenting on the judgment, CIPA President Alasdair Poore said that the judge had accepted that the scope of Article 3 [of the CIPA Higher Courts (Qualifications) Regulations] was somewhat ‘fuzzy at the edges’ and that it was appropriate for the patent attorney litigator concerned to have brought the matter to court for clarification.  “If you look at the strict wording,” the CIPA President said, “Article 3 is not limited to the protection of patents and confidential information but the broader term ‘protection of inventions’.  Mr Justice Lewison has now confirmed that this covers not only patents but also ‘protection of technical information’ – and that protection of technical information or inventions included handling how they were exploited such as royalty agreements.  This is good news for companies who can now be confident that legal experts who best understand how their technology is protected – patent attorneys – can handle court cases that involve the broad area of protecting inventions. They are clearly not restricted just to the narrower field of patents.”  

Wednesday, 2 February 2011

Counsel's anti-semitism earns Texas retrial on patent infringement damages

Surely it's time for religious
jibes and stereotyping to stop
I found it hard to believe that the state of affairs detailed in this link is true, but it must rank among the saddest reasons for a patent retrial.  In "Patent retrial follows Cisco lawyer's anti-Semitism", the author relates that a successful claimant in a US patent infringement action was able to challenge an unconscionably low award of damages following some remarkable expressions of sentiment that one would not thought it possible to hear in court in these days of political correctness.  The article by Batya Feldman for Globes states, in relevant part:
"The law of the conservation of energy applies to start-ups too. Nothing is lost; it only changes form. The case of Israeli start-up Commil is an excellent example. Two years after closing down, it sold its assets for a few hundred thousand dollars to a new company, Commil USA LLC. Commil USA sued Cisco Systems Inc. for infringement of its patent. Commil USA won the case and was awarded $3.7 million, but nevertheless in late 2010, it asked the court for a new trial. The request was granted. 
US District Court for the Eastern District of Texas Judge Charles Everingham approved the motion, which was based on the claim that Cisco's attorney made prejudicial remarks against the plaintiff, which were welcomed by the jury. What is the connection between wireless telecommunications equipment patents and anti-Semitic remarks? There were many such connections in the case of Commil USA vs. Cisco. ...
[Details of the factual and commercial background omitted]

The trial began in May 2010 in the Texas town of Marshall. The jury found that Cisco had violated Commil's patent and awarded the company $3.7 million. In June 2010, Commil USA filed a motion for a new trial, citing improper remarks by Cisco's attorney, and what it believed was the low reward; it had asked for $50 million. 
Commil did not mention the lawyer's name in the request for a new trial, but several reports say that it was Adv. Otis Carroll of the Ireland Carroll & Kelley PC law firm based in Tyler, Texas. 
The motion for a new trial states that Carroll described [Jonathan] David [who bought Commil's intellectual assets] as a greedy financial investor, who was Jewish by the way, who resided in Israel no less, and sought to take money from the manufacturer, Cisco, which employed thousands of people at its center in Texas. For example, in the closing argument, Carroll made a connection between the case and the trial of Jesus before Pontius Pilate, who ordered the crucifixion. He said that the jurors should stop David before the money window, because he wanted to fill his money bags and take them to Israel. 
Carroll even argued that $3.7 million was a great sum, considering that David bought the patent for a few hundred thousand dollars. He called David a "bottom feeder". When David mentioned a dinner meeting at a barbeque restaurant with one of the inventors of Commil's product, Carroll commented, "I bet not pork." Carroll also described David as "A financial investor who does not understand technology, and is seeking easy prey." ..."
PatLit thanks Shabtai Atlow (NDS) for this link.
There is also coverage of this item in Bloomberg here, International Business Times here and here.  Counsel in question is said to have apologised to all concerned.

Tuesday, 1 February 2011

EPO litigation guide now out, but not so fast ...!

Under the title "An overview of the national patent litigation systems in Europe", the European Patent Office has published a notice that it has issued the second edition of Patent Litigation in Europe.  This edition
"provides an overview of the national patent litigation systems across the European Patent Organisation's 38 Contracting States. This study presents an at-a-glance description of the different national revocation, nullity and infringement procedures currently in place. The competent courts dealing with these matters at first instance and appeal are also depicted".
I found out about this from the excellent Axel Horns, whose IP::JUR weblog contains a bright, articulate and thoroughly justified rant at the EPO's decision to limit access of this presumably useful document to those who fill in a form which gives the EPO a good deal of personal data which, one might think, is irrelevant to the discharge of its functions.

Good news is that Axel has updated this information with the good news (via @topalovi)  that, if you seek the second edition via the EPO's search facility, you can get to it directly without having to fill in any forms at all, here.  Beware: it's 104 pages in length (though some are blank!).