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On 1 January 2005, the Patents Act 2004 came into force and made significant changes to the Patents Act 1977 which is the statute governing the patent system in the UK. The new legislation amends UK law into line with the amendments to the European Patent Convention made during 2000 and is intended to modernise and clarify the UK patent system and make it easier for patent owners to enforce their rights. The changes are also designed to boost competition and innovation in the UK.
The act includes new provisions on restrictions on filing abroad, costs in proceedings, and remedies in entitlement proceedings. A further important addition, which is not expected to come into force until later in 2005, is to enable people to request a non-binding opinion from the UK Patent Office on patent infringement issues arising in disputes. In view of the relatively high cost of patent litigation, the aim of this amendment is to result in a greater number of settlements early in the litigation process.
UK AMENDMENTS IN DETAIL
On 1 January 2005, several amendments to the UK Patents Act came into force, including those set out below.
1. The rules relating to the claiming of priority have been relaxed. It is now possible to inform the UK Patent Office of the details of an application from which it is desired to claim priority in respect of a new UK application, up to 16 months after the earliest priority date, provided the UK application was filed within the normal 12-month priority period. Furthermore, a UK application may be filed claiming priority from an application made up to 14 months previously, if it can be shown that the failure to file within the normal 12-month period was unintentional.
2. The fee structure for applications filed after 1 January 2005 has altered, but the overall cost of requesting preliminary examination and search is unchanged.
3. Some of the restrictions on the filing of patent applications abroad by UK residents have been lifted. The vast majority of applications do not relate to military technology and do not contain information that might be prejudicial to public safety or national security, and for such cases it is no longer necessary to seek permission for filing abroad as a matter of course.
4. Amendments have been made to the law relating to actionable threats of infringement proceedings, in order to encourage genuine attempts to settle disputes. Patent proprietors are protected from claims for groundless threats made to so-called ‘primary infringers’ (those making or importing a patented product or using a patented process) in respect of any act of infringement. For instance, proceedings can be threatened against a retailer who is also engaged in importing the patented product, in respect of the acts of both importation and sale. In addition, proprietors need no longer be concerned about possible actions for unjustified threats in the event that their patent is ultimately held to be invalid, as long as they had no reason to suspect this when the threat was made. Finally, the new law extends the definition of non-threatening acts to include: providing purely factual information about the patent; making enquiries to discover whether and by whom a primary infringement has been committed; and making assertions about the patent (such as its validity) for the purpose of making such enquiries. To ensure compliance with the new provisions, we would encourage clients to seek our advice before entering into correspondence of this nature.
5. The law has been simplified in relation to the compensation available to a UK employee who makes an invention that later becomes the subject of a granted patent belonging to their employer. The employer is now required to provide compensation if the invention itself, in addition to or instead of the patent, is of ‘outstanding benefit’. Benefits from the invention may include profits due to the invention being a successful technical solution in itself, but not those derived from extensive marketing. Although such awards of compensation by the courts are rare, UK employers may wish to update any existing in-house compensation schemes to take account of the new provisions.
Further changes, in particular an increase in the period available for payment of renewal fees, are expected to come into force later this year. An unofficial consolidation of the new Act can be found at the following url:http://www.patent.gov.uk/patent/legal/consolidation.pdf
Erica Orton and Kate Whyte
WATERAID MUNRO CHALLENGE
On 10 June 2005, nine budding mountaineers from Venner Shipley headed off to the Eastern Highlands for this year’s charity event. The event was organised by WaterAid, with the aim of setting a world record by getting a team of people on top of every mountain more than 3000ft high in the British Isles at the same time. Our team chose the mountain Braeriach in the Cairngorms, the third highest mountain in Scotland at 4250ft.
A mere 11-hour trip in a minibus, made more (or less?) bearable by some enthusiastic karaoke, was all it took to arrive at our destination, Pitlochry. On arrival, there was little time to do anything apart from get a good night’s sleep in preparation for the day of walking ahead.
After an early start, our team set out for the top of Braeriach. We bravely made it through a ravine of huge boulders, and some steep climbs, and arrived at the summit within the time limits. We were extremely fortunate with the weather and were able to enjoy some spectacular views. A special mention must go to Erica, who made it to the top of the mountain, and back down again, carrying an extra supply of water. This was done to symbolise the struggle of the thousands of women in the Third World, who WaterAid help to support, who have no option but to carry many litres of water on a long journey between the water source and their village everyday.
Eight hours after we set off, we finally made it back to our trusty minibus, feeling suitably worn out, but without a blister in sight. A few brave members of the team even managed to make it to a ceilidh later that evening!
The team raised more than £1,700 for WaterAid. It was also confirmed on our return that all of the mountains had been completed successfully, making us world record holders!
Sarah Al-Assam
CHINAWHITE
An interesting decision has been reached in the UK Court of Appeal in a case concerning a well-known London nightclub, and which helps to explain the basic principles of what constitutes ‘bad faith’* in a trade mark context.
In November 1998 the CHINAWHITE nightclub commenced trading. Prior to opening, the bar manager Matt Rymer was asked to develop a recipe for a signature cocktail for the club it had to be white in colour and oriental in flavour - called CHINAWHITE. In December 1998 the drink was produced and sold, and a Confidentiality Agreement was signed in that month by Rymer to maintain the confidentiality of the recipe for the cocktail.
One month prior to launch of the cocktail, Rymer had discussed the CHINAWHITE cocktail with Karl Harrison, who subsequently carried out company name and trade mark searches, and on 18 March 1999 incorporated a company called China White Limited, appointing Rymer as Director. On 19 March 1999 he applied to register the mark CHINAWHITE in the UK for various alcoholic and non-alcoholic drinks, including cocktails.
The application was opposed by the owner of the CHINAWHITE nightclub, Teton Valley Trading Ltd., on the grounds that the application was applied for in bad faith. In his defence Harrison stated that he thought the drink was owned solely by Rymer.The Hearing officer concluded that the applicant believed what he had been told by Rymer and ‘saw nothing wrong in his own behaviour’. However, the Hearing Officer felt that Harrison's actions fell short of acceptable commercial behaviour and rejected his defence.
Harrison appealed. At the Court of Appeal he argued that bad faith was the same as dishonesty. He had believed that the recipe and name was owned by Rymer and this meant that the application was applied for in good faith; the test for bad faith was subjective.
The opponents argued that the test for bad faith was objective and that the court should examine the facts. The fact that Harrison had believed Rymer did not mean that the application had been made in good faith.
LJ Aldous held that:
1. The test of bad faith was a combined test. The words ‘bad faith’ suggested a mental state, and that when considering whether there was bad faith in an application all circumstances were relevant.
2. A study of other cases showed a consensus that seeking to monopolise another's trade mark would render an application invalid.
3. A person in the position of the applicant adopting proper standards (despite believing Rymer) would not have applied for a monopoly, which would have enabled him to prevent the opponents carrying on their business of selling their CHINAWHITE cocktail, and drinks under that name.
It was concluded that Harrison's application was made in bad faith, and the appeal rejected.
This case demonstrates that it is not acceptable to apply for a mark knowing that it is already used by another on the goods of interest, even if the mark appears to be free to register. It also helps to explain some of the criteria to be considered in the context of a ‘bad faith’ claim, and clarifies points not covered by earlier cases dealing with these issues.
If you have any questions about the implications of this case, please contact us.
Debra Hiddleston
* S3(6) of the Trade Mark Act 1994 states that ‘a trade mark shall not be registered if or to the extent that the application is made in bad faith.’
DIAGNOSTIC METHODS
Article 52(4) EPC excludes from patentability ‘methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body’.
Nevertheless, at least until recently, the European Patent Office considered methods for obtaining information (data, physical quantities) from the living human or animal body not to be excluded from patentability by Article 52(4) EPC, if the information obtained merely provides intermediate results which on their own do not enable a decision to be made on the treatment necessary. Generally such allowable methods include X-ray investigation, NMR studies and blood pressure measurements (see the Guidelines for Examination and Technical Board of Appeal Decision T385/86).
However, with Technical Board of Appeal Decision T964/99, the European Patent Office's attitude towards claims relating to diagnostic methods seems to be changing. In T964/99, the Technical Board refused claims directed to a method of sampling a substance from a human or animal body and analysing the concentration of the substance. The product to be protected by the patent application under consideration by the Technical Board in T964/99 is Cygnus' GlucoWatch®, a glucose monitor to be worn by diabetics like a wristwatch.
The GlucoWatch® is designed to monitor diabetics' glucose levels and not used to diagnose diabetes at all, since the diabetics intended to use the GlucoWatch® already know that they have diabetes.
Contrary to T385/86, the Technical Board in T964/99 held that the expression ‘diagnostic methods practised on the human or animal body’ in Article 52(4) EPC should not be considered to relate only to methods containing all steps involved in reaching a medical diagnosis. Moreover, the Technical Board held that Article 52(4) EPC is meant to exclude from patent protection all methods practised on the human or animal body which relate to diagnosis or which are of value for the purposes of diagnosis, a development in case law which must be a real worry to the pharmaceutical industry.
After much lobbying, the President of the European Patent Office has referred questions relating to this conflicting case law to the Enlarged Board of Appeal for consideration as case no. G1/04. The European Patent Office has indicated that following a period for comments by interested parties, a decision by the Enlarged Board can be expected shortly.
Allie Elend
THE WHEELS KEEP TURNING...
A team of nine from Venner Shipley recently took part in the London to Cambridge bike ride in aid of Breakthrough Breast Cancer. A few long-forgotten bikes came out of the garage and were dusted down for the fifty mile pedal in some blazing sunshine, but highlights included whole-family roadside supporters, beautiful Cambridgeshire countryside and being able to cheer for a gentleman on a penny farthing at the finish lineÉ The whole group finished without major injury, although there were a few saddle-sore people in the office the next day! It was all worth it to raise over £1400, and we're all looking forward to the next charity challenge.
Erica Orton
REGISTERED COMMUNITY DESIGNS
The Registered Community Design system has proved to be very popular with our clients and we have been actively filing and obtaining Registered Community Designs at the Office for Harmonization in the Internal Market (OHIM) since the system came into being some two years ago.
A Registered Community Design affords its owner protection for the shape and appearance of their designs in 25 countries of the European Union for a significantly smaller cost than would be incurred by filing individual national applications.
Our experience in using the new system has been encouraging and we have found that the vast majority of applications are being registered within 1-2 months with only relatively few exceptions. Venner Shipley also have the honour of filing (and winning!) the first appeal against an OHIM decision refusing an application for registration of a Community Design.
If you would like further information in relation to Registered Community Designs, please ask us for a copy of our guide, which is also available on our website.
Ian Grey
VENNER SHIPLEY ARE TOPS!
We like a challenge and so when the opportunity to participate in a pub quiz organised by the Chartered Institute of Patent Attorneys (CIPA) arose recently, we jumped at the chance! A team of six (Stuart Geary, Diana Pisani, Phil Harrison, Tanya Heare, Olivia Johansson and Sarah Al-Assam) battled it out against more than twenty other teams from London-based firms in themed rounds including science and technology, geography, history, sport, music and film.
Stuart and Diana were our true star performers, ensuring full marks in the history and general knowledge round!
Although it was tight between the top three teams for most of the quiz, Venner Shipley saw the fight through to the end, to finish joint first. Unfortunately, however, we fell down at the tiebreak question: ‘How tall is an Oscar statue in centimetres?’
Nonetheless, we were very satisfied with having put Venner Shipley firmly on the pub quiz map and we are looking forward to our next challenge. Oh, and for those that are wondering, the answer is 34.29 cm!
Tanya Heare
DYSON CLEANS UP ON SPARE PARTS
In December 2004 the UK High Court held that a company called Qualtex, which makes spare parts for vacuum cleaners, infringed Dyson's unregistered Design Right (DR) in a number of parts and accessories for Dyson vacuum cleaners.
Background
Dyson vacuum cleaners have a very futuristic and distinctive appearance. Qualtex made so-called ‘pattern spares’ which closely mimicked this appearance (although the consumer was in no doubt that the spares originated from Qualtex). Qualtex knew that Dyson had a reputation for vigorously defending its intellectual property rights, so initially launched a small range of pattern spares for Dyson cleaners. When Dyson took no action, Qualtex expanded its range and Dyson subsequently sued for infringement of its DR in the spare parts.
The Arguments
There was little doubt that the pattern spares made by Qualtex were very similar to those made by Dyson. Indeed, a director of Qualtex admitted that they had essentially copied the designs. However, as part of their defence, Qualtex tried to argue that the spare parts were not entitled to DR protection as they fell in one of the exceptions to protection; namely, ‘must-fit’, ‘must-match’ and/or surface decoration. Moreover, Qualtex tried to argue that Dyson had been acquiescent by not trying to stop Qualtex producing and selling the smaller range of pattern spares and that this estopped Dyson from bringing an action now.
The Outcome
In order to establish whether DR persisted in each of the spare parts, the Judge broke each spare part down into individual features and established whether DR subsisted in each of these features.
The Judge looked firstly at the ‘must fit’ exception. The ‘must fit’ exception excludes from protection any feature that enables connection to another article. The Judge applied this exception narrowly and said that it extends only to those features required to actually enable the connection (or placement) and that DR subsists in the remainder of the features.
The Judge then looked at the ‘must match’ exception. The ‘must match’ exception excludes from protection any features whose shape or configuration is dependent upon the appearance of the vacuum cleaner as a whole. In order to establish whether this exception was appropriate, the Judge determined whether the overall appearance of the vacuum cleaner would be radically different if that feature looked different. If the appearance would look radically different then this exception would apply.
The Judge then turned to surface decoration. On a number of features, there was a 3D ‘ribbing’ effect. In some cases, this ribbing was so substantial that it actually altered the shape and/or configuration of the feature meaning that DR was found to subsist in these features. Of more interest was that some of the ribbing enabled the user to grip the article (as well as maintaining the ‘futuristic look’). The Judge held that where the surface decoration was substantial enough to perform a secondary function (such as to improve grip), this went beyond surface decoration and thus DR did subsist.
With regard to acquiescence, the Judge held that Qualtex was ‘testing the ground’ by making a small range of parts knowing that it was infringing the DR hoping that, when production was increased, they could try and argue acquiescence. Accordingly, the Judge ruled that it would not be right to allow acquiescence to a defendant in this situation.
Finally, the Judge also noted that ‘commonplace’ was more than mere novelty (in a patent sense). For a design to be ‘commonplace’ it had to be commonly known within the relevant design field in the UK.
Conclusion
It is ironic that the exceptions set out above were originally included in the statute to assist the spare parts market. However, this case has potentially changed this. It should be particularly noted that this ruling could have implications for the ‘pattern spares’ market in all fields of commerce, such as the automotive spare parts market.
Jonathan Jackson
FURTHER EXPANSION...
Following another successful year, the firm is pleased to announce the appointment of another eight people to our professional team.
Jonathan Jackson
Jonathan graduated from the University of Sheffield with a Masters Degree in Electronic Engineering where he specialised in telecommunications and semiconductor technology. Jonathan has also been awarded a Certificate in Intellectual Property Law from Queen Mary, University of London. Before joining the firm, Jonathan worked for the intellectual property department of a large multinational Japanese consumer electronics company, advising on both domestic and foreign patent related matters, as well as commercial activities related to other forms of intellectual property. Jonathan specialises in the filing and prosecution of patent applications in the field of electronics and in particular, consumer electronics.
Sarah Al-Assam
Sarah has an honours degree in Physics from Oxford University. During her degree, she specialised in semiconductor physics and laser physics. In her final year project she conducted research into modelling the atomic levels of the neon isoelectronic sequence. She specialises in the filing and prosecution of patent applications in the field of electronics.
Debra Hiddleston
Prior to joining us Debra worked for a number of years in both private practice and in-house for a major drinks company. She specialises in the filing and prosecution of trade mark applications in the UK, at the Office for Harmonisation in the Internal Market and overseas including Madrid Protocol applications. Debra has wide experience of all aspects of trade mark matters, including clearance, maintenance, oppositions (both in the UK and Europe), and infringement conflicts. Debra is a Member of the Institute of Trade Mark Attorneys (ITMA) and has passed the ITMA Foundation examinations. Debra is an honours graduate in Music and English Literature from Middlesex University.
Stephen Johnson
Stephen graduated from Oxford University with an honours degree in Chemistry. He has also completed a D.Phil. in Synthetic Organic Chemistry, again at Oxford University. His doctoral research covered the field of carbohydrate-derived peptidomimetics, with a particular emphasis on the synthesis and conformational investigation of oligomers formed from rhamnose-derived oxetane-based dipeptide isosteres.
David Paton
David graduated from the University of Bath with a Masters degree in Mechanical Engineering. During his studies he was involved with the design of a novel electromagnetic train suspension system. David has also worked for a leading international gases company, involved in the research and development of ultra high efficiency vacuum pumps for use in the semiconductor industry. He now specialises in the filing and prosecution of patent applications relating to mechanical and electromechanical inventions and is also involved in the filing and prosecution of registered design applications.
Sarah Pearson
Sarah graduated with a Masters degree in Molecular and Cellular Biochemistry from Oxford University. As part of her degree, she conducted research into developmental changes in yeast caused by nutritional conditions. Before joining us, she worked at another leading firm of patent attorneys in London. Sarah holds a Certificate in Intellectual Property Law from Queen Mary, University of London and is a Chartered and European Patent Attorney. She specialises in the filing and prosecution of patent applications in the biotechnological and pharmaceutical fields.
Iain Russell
Iain graduated from the University of Warwick with an honours degree in Mathematics and Physics. During his degree, he studied non-linear dynamical systems, including predator-prey models, and worked in the area of information theory. He specialises in the filing and prosecution of patent applications in the field of electronics, software and telecommunications.
Kathryn Whyte
Kate graduated from the University of York with an honours degree in Biology, which incorporated a twelve month placement in
a research laboratory with a pharmaceutical company. Her DPhil research at Oxford University involved the use of electrophysiology and immunocytochemistry to study the effect of acetylcholinesterase on embryonic dopaminergic cells. Kate subsequently held a postdoctoral position at the University of Queensland, Australia, during which she investigated the effect of ischaemia on cardiac ganglia, and developmental changes in neural stem cells. Kate holds the Certificate in Intellectual Property Law and she now specializes in the filing and prosecution of patent applications in the fields of pharmaceuticals and biotechnology.
DAMAGES PAYABLE ON INVALID PATENT... OR NOT?
In our previous newsletter we reported a decision in the case of Coflexip SA v. Stolt Offshore MS Ltd. (No. 2)* Coflexip had successfully sued Stolt for patent infringement and an inquiry into damages was ordered. Before the inquiry took place, however, a third party (Rockwater) was successful in a separate action for revocation of the same patent, relying on prior art that had not previously been considered during Stolt's counterclaim for revocation.
Coflexip appealed against the finding of invalidity of the patent, and Stolt, (perhaps understandably) aggrieved by the prospect of being faced with a claim for around £80 million in respect of infringement of a patent that might be invalid, requested a stay of the inquiry into damages pending resolution of Coflexip's appeal. Nevertheless, it was held by both the judge of first instance and the Court of Appeal that the inquiry should proceed, since Stolt were ‘estopped’ from relying upon the subsequent revocation.
This decision was controversial, but a public interest in the finality of litigation can be appreciated. In this particular instance, though, any perceived unfairness to Stolt has now been mitigated by the fact that the Court of Appeal has overturned the lower court's finding of invalidity in the Rockwater proceedings.
An opportunity for this issue to be considered by the House of Lords has now been lost, and for the time being the estoppel principle still stands, as does the potential for future controversy on this issue: Stolt would have been liable to face the claim to damages, regardless of the final outcome of the Rockwater proceedings.
A key point to bear in mind in this case is that Stolt failed to show that they could not, with reasonable diligence in conducting a more extensive search, have discovered and produced, in their own counterclaim for revocation, the relevant prior art relied upon by Rockwater. A majority of the judges thus considered that to reopen the issue of validity would be an abuse of process.
This case highlights the importance of conducting thorough searches for relevant prior art from the outset, when considering actions for opposition or revocation of a patent.
Erica Orton
* [2004] FSR77
A UK VIEW ON TECHNICAL CONTRIBUTION
Following on from the EPO Hitachi* decision, the meaning of the term ‘technical contribution’ was considered in a recent hearing at the United Kingdom Patent Office.
The hearing covered four applications**, which related to automated methods for estimating costs for and/or filing trademark applications. The Examiner found that each application included claims to subject matter excluded from patentability under Section 1(2) of the UK Patents Act 1977. The claims were considered to relate to a business method, mental act or computer program as such.
The hearing officer reiterated that it is the substance of the invention which is important, rather than the actual form of the claims. The mere inclusion of hardware or technical elements would not be sufficient to avoid the exclusions of Section 1(2). The applicant argued that the latter statement was inconsistent with the Hitachi decision. In response, the hearing officer noted that, where there was a discrepancy between UK case law, such as the Fujitsu*** decision, and the EPO Boards of Appeal, he would follow the precedents set by the UK courts. However, he also considered that, in spite of the potential divergence between their approaches, the UK courts and the EPO would arrive at the same conclusion as to validity, as the EPO would exclude any non-technical features from their assessment of inventive step.
The hearing officer also considered that the exclusions of Section 1(2) of the UK Patents Act 1977 were compatible with Article 27 of TRIPs, which requires that patents be available for inventions in all fields of technology. This conclusion was based on the fact that no amendments to Section 1(2) had been deemed necessary when TRIPs came into effect.
The applicant put forward a number of arguments for a broader interpretation of ‘technical contribution’. These arguments were rejected and so, unfortunately, no further guidance regarding the definition of this term was given. The applicant put forward an interesting argument that the term ‘technical’ should be interpreted in the context of the relevant field of technology. For example, in financial forecasting, the term ‘technical analysis’ is often used, suggesting that the skilled persons in this field consider such analysis to be of a technical nature. However, the hearing officer countered this argument by suggesting that the ‘technical areas’ beside a football pitch could not be considered patentable subject matter merely because of their nomenclature.
Recently, the UK Patent Office ran a series of workshops in which possible definitions for ‘technical contribution’ were discussed. These workshops were open to all interested parties, who were given the opportunity to suggest a suitable definition. Unfortunately, none of the suggestions discussed at the workshop gained clear support. It was felt that none of the proposed definitions corresponded to the standard that the attendees applied when assessing a case and all suffered from some degree of ambiguity. The outcome of these workshops has formed the basis of a report intended to inform the UK Government's position in discussions on the proposed EU Directive on the Patentability of Computer-Implemented Inventions.
The UK Patent Office website includes information about the proposed directive and an analysis of the case studies and definitions discussed at the workshops.
These can be accessed via: http://www.patent.gov.uk/about/ippd/issues/cii-workshops.htm
Diana Pisani
* EPO Technical Board of Appeal T0258/03
** BL/024/05 to BL/027/05, accessible via: www.patent.gov.uk/patent/legal/summaries/2005/index.htm
*** Fujitsu Ltd.’s application, [1997] RPC 608
THE UK PATENT OFFICE PREPARES FOR LONDON AGREEMENT
At present, in order to give a granted European patent effect in most contracting states, a translation of the whole patent specification into the official language of that state must be filed at the national patent office. European patents can now designate up to 30 contracting states and there are a total of 22 different official languages. The cost of giving a European patent effect in multiple contracting states can be extremely high, often running into tens of thousands of pounds.
The London Agreement, which was concluded in London on 17 October 2000, intends to reduce the cost of obtaining patent protection in Europe by reducing the significant translation costs upon grant. The contracting states party to the London Agreement undertake to waive, entirely or largely, the requirement for translations of European patents to be filed in their national language.
The UK recently ratified the London Agreement, becoming the sixth European country to do so and joining Germany, Denmark, Iceland, Slovenia and Monaco. For the agreement to enter into force, it must be ratified by at least eight states, including the United Kingdom, France and Germany.
In addition, the UK Patent Office has issued a Guidance Note relating to changes to the UK patent law regarding the filing of translations upon grant of a European patent in French or German. The new UK legislation is in readiness for the London Agreement and it will only take effect once the London Agreement as a whole comes into force.
Under the new legislation, it will no longer be necessary for the applicant to provide the UK Patent Office with an English translation of a patent granted by the European Patent Office in French or German. However, during court proceedings, or in proceedings before the Comptroller, an English translation may be required.
Despite these encouraging developments, for the foreseeable future applicants will still have to file translations if they wish to obtain patent protection in the UK. The future of the London Agreement will remain uncertain until it is ratified by France. However, the growing list of states ratifying the agreement will hopefully mean that the French government is put under increasing pressure to let the agreement proceed.
Sian Gill
• All Change for UK Patent law
• Registered Community Designs
• Dyson cleans up on spare parts
• Damages payable on invalid patent... or not?
• A UK View on Technical Contribution
• The UK Patent Office Prepares for the London Agreement
