Wednesday, 5 August 2009

Same patent, same allegation, different outcome

Another end-of-term ruling from the Patents Court for England and Wales last week was the decision of Mr Justice Mann in Occlutech GmbH v AGA Medical Corp; Dot Medical Ltd [2009] EWHC 2013 (Ch). Occlutech sought a declaration of non-infringement against AGA, who counterclaimed for infringement, joining Occlutech's importer Dot as a third party.

This is another of those depressing cases (if you're a litigant, that is) which appears mystifyingly to go different ways in different jurisdictions. In Germany the patent was held to have been infringed, but not in the Netherlands. The argument raised in support of infringement, said Mann J, was "... similar to one that succeeded in the German proceedings, ... [but] I find that it fails ...". However, where different issues are raised before courts in different jurisdictions -- as was apparently the case here -- the fact that the patent and the alleged infringing article are the same, as is the submission in support of infringement, does not guarantee the identical result.


Anonymous said...

oddly enough, the decision nowhere appears to identify the patent in suit. I g(oogle)uess it is

Anonymous said...

Well maybe like the Improver and the Hilti (Spannschraube) cases, it takes a second bite at the cherry (the appeal instance) to sort things out. And anyway, if litigation is the last resort (as it should be), and so confined to those 50:50 cases in which both sides think they should win, what's so regrettable about different courts coming to different conclusions. They would in the same country, so why not in different countries too. Healthy argument about which judge got it most right will raise judging standards all over Europe, no?