Recent Patent Cases

Brigade v Back-Tec Worldwide Ltd and Jamie Martin MacSween [2012] EWPCC 52

Costs and Dissemination Order

This is a case heard in the Patents County Court before Birss HHJ which related to infringement of GB patent No. 2318662. The first defendant had failed to file an amended statement of case, as required in an earlier order by Floyd J on 12 July 2012 and subsequently in an order by Birss HHJ on 19 September 2012. Therefore, the first defendant's defence was struck out and judgement entered for the claimant. The claimant made a request for an injunction, delivery up, costs, an inquiry as to damages, additional damages and dissemination of the judgement. An order for injunction, delivery up and damages inquiry was made.

The claimant sought a summary assessment of costs. The evidence provided simply stated that the claimant's costs were higher than the scale limit and so the scale limit is claimed. This was held to be insufficient to allow a summary assessment to take place. It may be that a summary assessment of a party's actual costs for a given stage produces a sum lower than the scale limit.

The judge considered that although a dissemination order could be made, material should be made available to the court in order to be satisfied that such an order is desirable, as made clear in the Court of Appeal judgement in Samsung v Apple.

As the case is a judgment in default of defence, Birss HHJ indicated that considerations applicable to declaratory orders in similar circumstances were potentially relevant, such as Wallersteiner v Moir [1974] 1 WLR 991. The claimant was given liberty to apply for a dissemination order.

Mölnlycke Health Care v BSN Medical [2012] EWHC 3157 (Pat)

Construction, Novelty and Obviousness, Sufficiency

Mölnlycke sued BSN Medical for infringement of their European patent (UK) 0855921, which related to wound dressings and methods of making them.

Construction

Claim 1 of the patent relates to a wound dressing and requires a layer of absorbent foam material including a pattern of holes, where the foam material is coated with a layer of a skin-adhering hydrophobic gel.

The walls of the holes are defined as being coated with gel at those end parts of the holes that lie proximal to the wearer's skin when the dressing is worn. The primary issue of construction was whether the language of the claim required the gel to penetrate the hole, or whether it was sufficient for the gel to reach the perimeter.

Floyd Jconcluded that the...