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IP Snapshot – September by Tom Carver

Every case is interesting to someone and no case is interesting to everyone, and so we provide snapshots of each intellectual property decision reported by bailii.org (British and Irish Legal Information Institute) from the Patents Court (which deals with all registered rights), the Intellectual Property Enterprise Court (for smaller or simpler claims), and the appeal courts, and a contents table so that you can see quickly whether there is anything interesting to you.

MotorolaMobility Llc & Anor v Ericsson Ltd & Anor

The simple story of this decision is that the claimant sought an interim injunction to restrain patent infringement in the UK.  The judge at first instance applied the well established American Cyanamid principles and found that damages would be an adequate remedy and therefore refused the interim injunction.  The Court of Appeal agreed and dismissed the appeal.

The more complex version is that the claimant argued that damages would not be an adequate remedy because if the interim injunction were not granted then it would lose significant leverage in negotiations with the defendant, in particular in relation to the enforcement of injunctive relief applied for by the defendant against the claimant in Brazil, Colombia and the ITC in the USA. Losing that leverage would cause damage for which damages would not be an adequate remedy and therefore the interim injunction should be granted. Effectively, the claimant wanted an interim injunction in the UK to use as negotiating leverage against the threat of injunctions elsewhere in the world.

The first instance judge and Court of Appeal found that the injunctive damage in Brazil, Colombia and the USA that the claimant sought to rely on was not damage caused by the defendant’s infringement of the UK patent and had nothing to do with protecting its rights under the UK patent.

Alcatel Lucent SAS v Amazon Digital UK Ltd & Ors

This is a follow-on decision relating to this decision we reported here, and the terms of the confidentiality order. It is worth reciting the principles to be applied when considering what confidentiality restrictions are appropriate in relation to material disclosed in proceedings:

i) In managing the disclosure of highly confidential information in intellectual property litigation, the court must balance the interests of the receiving party in having the fullest possible access to relevant documents against the interests of the disclosing party, or third parties, in the preservation of their confidential commercial and technical information.

ii) An arrangement under which an officer or employee of the receiving party gains no access at all to documents of importance at trial will be exceptionally rare, if indeed it can happen at all.

iii) There is no universal form of order suitable for use in every case, or even at every stage of the same case.

iv) The court must be alert to the fact that restricting disclosure to external eyes only at any stage is exceptional.

v) If an external eyes only tier is created for initial disclosure, the court should remember that the onus remains on the disclosing party throughout to justify that designation for the documents so designated.

vi) Different types of information may require different degrees of protection, according to their value and potential for misuse. The protection to be afforded to a secret process may be greater than the protection to be afforded to commercial licences where the potential for misuse is less obvious.

vii) Difficulties of policing misuse are also relevant.

viii) The extent to which a party may be expected to contribute to the case based on a document is relevant.

ix) The role which the documents will play in the action is also a material consideration.

x) The structure and organisation of the receiving party is a factor which feeds into the way the confidential information has to be handled.

Panasonic Holdings Corporation v Xiaomi Technology UK Ltd & Ors

This is a timetabling decision – not often reported…

Pfizer Inc. & Anor v ModernaTX, Inc

This is a follow-on decision relating to this decision we reported here. The judge made costs orders, gave permission to appeal his decision in relation to one of the patents in suit and refused in relation to the other notwithstanding that the defendant argued that the case was very important, high value and the judgment of use in other jurisdictions.

Samsung Bioepis UK Ltd v Janssen Biotech, Inc.

The judge refused permission to appeal his decision in this case we reported here on a specific point because the argument has no prospect of success and also that it was not legitimate to raise it at the stage. The argument should have been raised at trial.

Equisafety Ltd v Woof Wear Ltd

None of the items in this copyright infringement action amounted to works of artistic craftmanship, and accordingly none of them benefitted from copyright protection. The various variations to the standard design were functional and not reflective of the author’s personality.