Coflexip SA in addition to closed to other 5 Stolt Offshore MS Ltd [2004] EWCA Civ 213 raises a indicate of peachy principle: should a someone live made to pay damages for patent infringement fifty-fifty if the patent he has allegedly infringed is afterwards institute to live invalid next proceedings fought out betwixt the patent’s possessor in addition to closed to other alleged infringer? In Coflexip, after the Court of Appeal affirmed that Coflexip’s patent was valid in addition to that Stolt had infringed it, the Court of Appeal ordered an interrogation every bit to damages. While that interrogation every bit to damages was proceeding, a companionship unconnected amongst Stolt issued proceedings against Coflexip for revocation of the same patent. In that activity the guess revoked the patent, citing prior fine art that had non been referred to past times Stolt either at commencement example or the Court of Appeal. In the low-cal of the patent’s revocation, Stolt applied for a remain of the interrogation into damages, disceptation that the subsequent revocation of Coflexip’s patent provided either a consummate defense forcefulness to the claim for damages or a bar to that patent’s enforcement. Jacob J refused to grant a remain of the interrogation into damages on the solid soil that the revocation of the patent would non atomic number 82 to Stolt’s liability for damages beingness effectively discharged. Stolt’s appeal against that determination was dismissed past times a 2-1 bulk (Neuberger LJ dissenting).
The bulk considered that finality inwards litigation would live lost if a lastly determination on the validity of a patent in addition to its infringement could live reopened if closed to other someone secured the invalidity of that patent, amongst a consequent club for revocation, in addition to if that revocation could live relied on inwards an interrogation every bit to damages inwards the before action. Stolt could non plead number estoppel since Stolt itself could, amongst reasonable diligence, convey adduced the fresh cloth on which the Coflexip patent was afterwards invalidated. In the circumstances it was an abuse of process, after the validity of the patent was finally decided betwixt Coflexip in addition to Stolt, to larn dorsum to that decision. There was besides a world policy consideration inwards that if a defendant, having finally lost a patent action, knew that an application for successful revocation past times closed to other mightiness larn him off the claw for damages, he would convey every motive for excavation upwards improve prior fine art in addition to encouraging closed to other to assault the patent. So, although he himself could non re-litigate validly, the dominion against relitigation could live subverted indirectly. Stolt could non thence live allowed to rely on the subsequent revocation of Coflexip’s patent.
In a judgment which towers over the paltry offerings of the majority, Lord Justice Neuberger’s dissent provides a long in addition to detailed critique of the issues in addition to comes downward forcefully against “the offensiveness of the notion of Stolt beingness liable for, in addition to Coflexip beingness entitled to, tens of millions of pounds for infringement of a patent which is at nowadays shown to live invalid, amongst retrospective effect”. This example volition sure larn to the House of Lords, where the IPKat’s coin is on Neuberger LJ’s analysis beingness preferred to that of the majority.
Perspectives on patent infringement damages here, here, here and here
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