The Court's grant of certiorari is limited to a single question presented in the plaintiffs’ petition:
“1. Are human genes patentable?”
“1. Are human genes patentable?”
[W]alker Process claims “deal only with a special class of patents, i.e., those procured by intentional fraud,” and “cannot well be thought to impinge upon the policy of the patent laws to encourage inventions and their disclosure,” 382 U.S. at 180 (Harlan, J., concurring). Particularly in light of the demanding proof requirements of a Walker Process claim, we are not persuaded by SanDisk’s “flood of litigation” argument.
"As such, most attorneys on either register will have rights of audience for all IP matters in the Patents County Court, rather than patent attorneys only having rights for patents and designs (but not copyright), and trade mark attorneys not having any rights by default, as at present. We also get a handful of mildly interesting ancillary rights".But what we all want to know is whether when these new rules might be brought into force. If any reader of this weblog has a clue, will he or she please post the answer below.
Designation of Claim Forms in the Patents Court from 1 January 2013.
With effect from January 2013, all Patents claims will be given a new designation HP. So instead of e.g. the current HC 12 C01111 for Chancery claims, the claim number will be HP 13 C01111.
This will apply to all claims in the Patents Court (and so will include SPCs and sweep in a few registered designs etc). Those who issue proceedings in the Patents Court from 1 January are asked to make it clear to the counter staff on issue that it is a Patents Claim and therefore requires the new HP designation or, if issuing by post, then to emphasise the point in a covering note.
In general the staff are very good about this and there should not be a problem as, of course, the claim will be headed Patents Court as at present, but it can only help if the point is drawn to the attention of the counter staff at the time of issue. Under s. 96 of the Patents Act 1977, CPR Part 63 and Practice Direction 63 High Court claims relating to patents and certain other Intellectual Property rights are commenced in the Patents Court and the claim form is required to be marked “Chancery Division Patents Court’” If and when the draft agreement on a Unified Patent Court (UPC) becomes effective, it will be necessary to establish how many patent cases are started in the UK in successive years.
This change will enable the relevant claims for the purposes of UPC counting to be extracted electronically. This will make the collection of accurate data about the number of “patent cases” significantly easier than at present, although it is expected that it will still be necessary (given that in some European jurisdictions cases may be counted on a different basis) to review the HP cases to establish
· how many patents were in issue,
· whether there is a revocation counterclaim or anything else that might be characterised as a “patent action” in other parts of Europe,
· whether other patents are added into the claim later, and
· whether any application for interim relief was made.
Secretary IPCUCNovember 2012
|The Italian Supreme Court: we hope that it will|
not be troubled by too many patent appeals ...
* matters pertaining to industrial property;
* antitrust matters;
* matters pertaining to contracts of EU relevance;
* disputes between business corporations, co-operatives, groups.In order to maintain the specialisation gained over the past years, the Courts of Milan and Rome have already created two subsections, one for IP matters and the other for company matters, which should ensure better quality judgments. This same arrangement may also be adopted by other Italian courts.
(a) who won?Having established this, Judge Birss QC proceeded as follows:
(b) did the winner lose on an issue which was suitably circumscribed to deprive that party of the costs of that issue?
(c) was the case was a suitably exceptional one to justify making a costs order on that issue against the party which had won overall?.
* In determining the successful party, a judge has to look at the facts and decide who, as a matter of substance and reality, had won. True, EPP's freedom to sell its version three was of significant commercial importance to it -- but that did not mean that it could be regarded as the winner for the purposes of assessing the action's costs. Looking at the dispute from where the judge sat, EPP had firmly pressed its claim that the patent was wholly invalid and that version two did not infringe, even if the patent was valid. So far as validity was concerned, EPP relied on (i) three cited items of prior art, (ii) an attack of obviousness over the common general knowledge and (ii) added matter. However, when it came to the trial, EPP ceased to relyon one of the prior art citations and its other validity challenges failed. It was indeed Vernacare which emerged as the winner of the legal proceedings, although EPP's victory in relation to version three would be taken into account on an issue-based approach to costs.
* When deciding what order, if any, to make about costs, the court has to consider all the circumstances -- including the parties' conduct, their success in part if not in whole, and any admissible offers to settle. Here it would be fair to deduct 25% from Vernacare's costs to reflect EPP's success on the version 3 issue. A further 5% would be knocked off in relation to the issue of obviousness over common general knowledge. So far as conduct was concerned, while Vernacare's success on validity meant that it had achieved more than EPP had offered, Vernacare could and should have engaged more constructively with EPP's attempts to negotiate. This being so, a further 5% would be subtracted, leaving Vernacare with 65% of its costs.
* In a summary assessment of costs in the Patents County Court, a judge should start with the actual costs for a given stage, then assess them on the normal Patents County Court basis; the resulting figure was the one to which any issue-based discount should be applied. Once this discount has been applied, the figure should be compared to the appropriate scale in the Civil Procedure Rules (CPR PD 43-48) and the lower of the two sums will then be taken.
HLP Integration launches the ‘HLP3’ patent litigation funding solution
The first integrated solution for monetizing patents offered in Europe
Leading US litigation support consulting and services company HLP Integration has come together with commercial litigation funder Caprica; ATE [that's "after the event"] risk assessors Thomas Miller; and Olswang LLP to create the first ever turnkey solution for IP owners seeking to generate revenues from their patents.
Suitable patents admitted to HLP3 will undergo a robust and thorough process of analysis, expert review and risk assessment involving exhaustive research carried out by HLP; evaluation by Olswang LLP; and a further risk evaluation by ATE risk assessors. Subscribing patent owners will have the benefit of an option, for qualifying patents, to obtain funding from Caprica to take a patent case to court.
Funding commercial cases in the UK has grown significantly in recent years. Potential litigants seeking funding are normally required to undertake considerable preparatory work in order for their case to be reviewed by funders. This can be very time consuming and costly. Patent cases are also technically complex and therefore require access to specialist expertise at every stage leading to evaluation by a funder.
HLP3 is a process designed to allow a patent owner or licensee access to a detailed due diligence report provided by industry leaders at the least possible outlay and risk. The fact that the HLP3 process is integrated ensures the time involved from commencement of the patent review to clarity as to whether a patent can be successfully litigated is as short as practicably possible ...”
“The HLP3 solution ... has aligned the interests of all involved enabling those with patent rights access to the courts to release the value from their innovations. HLP3 has been designed to fund not only High Court cases but also smaller Patents County Court claims”.Reference to the British courts will set readers thinking whether, and to what extent, this solution can be applied mutatis mutandis to litigation elsewhere in Europe, particularly if and when the Unified Patent Court is to be the likely forum.