Thursday, 28 November 2013

"Faint" arguments not for the faint-hearted

Manvers Engineering Limited and another v Lubetech Industries Limited and others [2013] EWHC 3393 (IPEC) is on the whole a fairly unexciting, unremarkable ruling that the claimant's patent was valid (good news for him) but not infringed (oh, bother ...) The Court was the Intellectual Property Enterprise Court, England and Wales, and the judge a surprisingly senior Mr Justice Mann, who has been a member of the Chancery Division of the High Court for nearly ten years, and a Patents Court judge for most of that time too.

The interesting thing about this case was a slice of common sense which Mann J served up on a plate:
"29. In his "faint" (his word) argument in favour of infringement for this product Mr Wilson relied on a picture in the defendants' brochure which suggested that part of the long side of the liner would ride partly up the wall of the collector, and he suggested that he had a case for secondary infringement by selling the product with some sort of guidance as to its use in an infringing way. This argument is hopeless. ... There is no question of this configuration infringing.

30. I would go further in relation to this argument. This court (IPEC, as it now is) exists to provide quicker and cheaper determination of IP disputes. Speed and economy of hearings are at the heart of the procedure. That objective is frustrated if "faint" points, in which there is obviously no real hope, let alone any real prospect, of success take up the time of the court. Parties to proceedings in this court really should bring to it only the main points that are capable of making a difference. Judgment must be exercised as to which points it is worth putting before the court".
This blogger hopes that parties will take these words to heart.  So many people complain about patent litigation being expensive and cumbersome, but without appreciating that this consequence is of their own doing.


Anonymous said...

I was told once that barristers have a secret signal they give to a judge when they make such arguments which indicates 'I know this is hopeless, but this is what the client has instructed'. It's good for the Courts to make it clear they are unimpressed by weak arguments, and hopefully that will feed through the system to stop people attempting them in the Courts and at patent offices.

Anonymous said...

Actually I think there is a more important point in the decision. One would imagine that in a specialist UK Court for patent litigation that a Judge would understand some of the basic points of UK patent law. This Judge struggled.

"24.One question relating to the word "comprising" potentially arises. Mr Wilson submitted that it meant "includes" and not "consists solely of", at least in this context, and pointed to the EPO Guidelines for Patent Examiners, and the decision of Arnold J in Abbott v Medinol [2010] EWHC 2865 (Pat) as supporting the proposition that the word, in a patent context, was capable of bearing the former submission. I accept his submissions as to the meanings that the word is capable of bearing, but I am not altogether sure that they apply to this case........"