Monday, 26 January 2015

They think it's all over -- but the Comptroller can intervene

Kennametal Inc v Pramet Tools SRO, Associated Production Tools Ltd and Comptroller-General of Patents, Designs and Trade Marks, a Court of Appeal, England and Wales, ruling last Wednesday, is noted on subscription service Lawtel. It's a short case.

After Kennametal's UK patent was held invalid in earlier proceedings ([2014] EWHC 565 (Pat)), Kennametal did not seek permission to appeal against the revocation decision. Instead ,it applied -- and failed -- to get a stay of an order revoking the patent, pending the outcome of an application to amend which it had brought before the European Patent Office. Kennametal subsequently did appeal against the refusal to stay the revocation. Shortly before the date fixed for hearing this appeal, Kennametal and Pramet reached a settlement. The day before the hearing, the Comptroller received notice from Pramet that it intended neither to oppose the appeal nor to attend the hearing. At this point the Comptroller immediately served notice, stating its intention to intervene and to attend the hearing in order to oppose the appeal. The Court of Appeal ((the Chancellor, Sir Terence Etherton, together with Lords Justices Christopher Clarke and Vos) had to decide whether it was appropriate to adjourn in light of the recent developments.

Granting the Comptroller's application, the Court of Appeal held that the points raised in the appeal were important and of general application in relation to the revocation of patents. It was accordingly important that the appeal be argued properly and fairly. If that were to be done, it was perfectly clear that there was no alternative to adjourning the appeal in order to allow the important points of principle to be argued properly by the Comptroller.

This ruling serves as a warning that, while settlement of a dispute by mutual agreement between the parties is a desirable aim, it is not an end in itself and, in this case, it is not an end to the litigation either.

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