Two-man appeal team disapproves of consensual revalidation of invalid patents
Are they running out of Court of Appeal judges in English patent cases? The IPKat wonders, having found this on Butterworths' All England Direct service. It's Halliburton Energy Services Inc v Smith International (North Sea) Ltd, a decision of a two-man Court of Appeal (Lords Justices Rix and Jacob).
Halliburton owned two patents, the validity of which successfully was challenged by Smith. Before Halliburton's appeal got very far the parties entered into a worldwide settlement agreement, in result of which Smith no longer planned to oppose the appeal. Halliburton, however, was intent on getting its patents back. What then should the Court of Appeal do? In recent years the practice of restoring the patent without argument had arisen, subject to the recording of a comment that the fact that the patent had been restored did not mean it had been held valid or ruled on.
Halliburton and the Comptroller argued that, in view of rule 52 PD 13.1 of the Civil Procedure Rules (an appeal court should not normally allow an appeal unless the decision of the lower court was wrong), that practice was wrong and that the Court of Appeal could not reverse an order for revocation except after a review of the merits.
The Court of Appeal agreed that the previous practice was inappropriate: the Court of Appeal should not restore an invalid patent unless the decision to invalidate it was wrong. The court had, therefore, to hear the merits of the appeal.
This seems perfectly sensible to the IPKat, particularly if you take account of the interest of third parties who would never want the expense or inconvenience of litigating the validity of the patent but who, once it was struck down on the merits following a trial, were confident to manufacture the product or use the process covered by its claims. Merpel's not so sure. If the system worked well enough in the past, it seems a shame to change it merely because it's wrong in principle. And wouldn't innocent third parties get some protection from the courts if they turned out to be infringing a patent that was miraculously revalidated by consent after they began working it?
And who would have won if the two judges disagreed? Lord Justice Jacob is the Big Patent Chief, but isn't Lord Justice Rix the senior appellate judge by some three years ...?
Good IP writing course
A couple of weeks ago the IPKat asked if anyone was interested in a course on how to write good, crisp, clear, coherent prose on the topic of intellectual property law. Initial response has been excellent and, in the next couple of weeks, the IPKat will be offering some dates and further details. The cost will not exceed £55 for half a day (if you bring your own sandwiches) and may be less; the course will be in London.
If you've not yet put your name down, now's the time to do so. Just email the IPKat here and let him know. Oh, if you're putting down someone else's name - as a couple of correspondents have apparently done - make sure that he or she knows about it first!
Mountain out of a Molehusband
A valuable piece of intellectual property has gone missing: it's the classic public service film sequence featuring a fictional driver, one Reginald Molehusband, who demonstrated how not to park a car. Played by actor Ian Gardner, the Molehusband role was broadcast hundreds of times in the 1960s and 1970s - but no-one seems to have a copy. Any reader who knows how or where to lay hands on it should email the IPKat here, so he can claim the reward ... or, better still, contact the BBC directly here.
Bad parking here
Good parking here
Free parking here
Tuesday, 21 February 2006
Posted by Jeremy at 5:40:00 pm