Return Of The Yeda; Getting To Grips Amongst Wildlife

Belated claim to patent ownership: furnish of the Yeda?

flora a helpful banknote on Butterworths' All England Direct service on Rhône-Poulenc Rorer International Holdings Inc in addition to some other v Yeda Research in addition to Development Co Ltd [2006] EWHC 160 (Ch), a Patents Court conclusion of yesterday's engagement from Mr Justice Lewison.

This activity turned on a patent for therapeutic compositions containing monoclonal antibodies inwards combination alongside anti-neoplastic drugs, providing a agency of killing cancer cells rather than exactly preventing their replication. Influenza A virus subtype H5N1 reference was made to the Comptroller inwards which articulation ownership of the patent was claimed. Subsequently, Yeda filed an amended declaration inwards which it claimed sole ownership of the patent. RPR (the registered proprietor of the patent) in addition to its licensee objected to the amendments to Yeda's claim: first, because it was made exterior the fourth dimension bound of 2 years imposed nether s.37(5) of the Patents Act 1977 in addition to secondly on the Blue Planet that a claim to sole ownership should count equally a novel claim nether dominion 17(4) of the Civil Procedure Rules ('The courtroom may allow an amendment to modification the capacity inwards which a political party claims if the novel capacity is ane which that political party had when the proceedings started or has since acquired’).

The hearing officeholder allowed the amendments to the written statement, holding that he was non required to apply the criteria develop out inwards CPR 17.4 but had a discretion to allow the amendments. The RPR in addition to its licensee appealed.

Mr Justice Lewison allowed the appeal.

* Although he was correct that the CPR did non apply, the hearing officeholder did non so consider the termination of the amendments if they were allowed. He exactly assumed (wrongly) that, if the amendments were allowed, the questions raised past times the amendment would live considered past times the Comptroller inwards due course.

* Since the amendments would non relate dorsum to the engagement of the master reference, RPR's limitation defense to the novel claims remained available in addition to in that location was thence no useful exercise inwards allowing them.

* Section 37(5) imposed a limitation menstruum that barred the making of a claim exterior the two-year fourth dimension limit; it did non simply bar the grant of a item remedy. Legal certainty militated against an amendment allowing a novel claim to live made after the decease of the limitation menstruum that related dorsum to the engagement when the claim was originally made, fifty-fifty if it did arise out of the same facts.

is reminded of the slightly hyperbolic observation of Lord Justice Jacob that, if you lot desire to brand a success of intellectual belongings law, do don't demand to know whatever 'real' IP - all you lot demand to know is the procedural rules. Merpel says, I exactly desire to know how it took Yeda so long to create upwards one's hear it had a claim to sole ownership of the patent inwards the get down place. It's sure an number that comes pretty high upwards on your 'to-do' listing when you're contemplating litigation over proprietary interests inwards patents.

Rhône here; Côtes du Rhône here
Poulenc here


Pandas larn their pay-off

BAILII is carring the full text of WWF-World Wide Fund for Nature (formerly World Wildlife Fund) in addition to some other v World Wrestling Federation Entertainment Inc [2006] EWHC 184 (Ch), yesterday's Chancery Division conclusion of Mr Justice Peter Smith.

The history

World Wide Fund was a Swiss-based environmental charity. Its mention in addition to acronym WWF were extremely good known internationally. World Wrestling Federation, a U.S.A. company, adopted in addition to used a logo which was a stylised version of the letters WWF. When World Wrestling Federation started to apply for merchandise marks exterior the US, litigation erupted which went inwards World Wide Fund's favour.


Settlement in addition to breach

Settlement negotiations led to an understanding inwards twenty Jan 1994 which contained substantial restrictions on how the World Wrestling Federation could exercise 'WWF' and, next breach of those damage past times World Wrestling Federation, inwards 2001 an enquiry was ordered. Five years later, at the trial of a preliminary issue, the courtroom was asked to create upwards one's hear whether World Wide Fund were entitled to claim damages inwards the variety out of a reasonable payment equally a quid pro quo in central for relaxing their rights nether the agreement.


The arguments

World Wide Fund claimed damages nether Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 2 All ER 321 in addition to contended that, where in that location was a breach of contract, the victim was entitled to claim equally damages a reasonable payment inwards honour of the hypothetical unloosen of the breach of contract. World Wrestling Federation disagreed, arguing that the claim for Wrotham Park-type damages had to satisfy the same exam of causation equally whatever other claim for damages: what would the innocent party's seat receive got been 'but for' the breach?


The decision

Peter Smith J ruled that World Wide Fund was entitled to try damages inwards the variety out of a reasonable payment equally a quid pro quo :

* The primary ground of assessment of damages nether the Wrotham Park principle was to consider the amount that would receive got been negotiated betwixt the parties if each made reasonable exercise of its bargaining seat without holding out for unreasonable amounts. The termination of that hypothetical negotiation had to live determined past times reference to the parties’ actual cognition at the fourth dimension that negotiations would receive got taken house (normally the engagement of the breach).

* The fact that the innocent political party would never receive got agreed to whatever such sale or relaxation was irrelevant, equally was the acquit of the wrongdoer.

* The conclusion to accolade damages was discretionary according to the circumstances of the case, but the conclusion should live taken when damages would live an inadequate remedy in addition to where, inwards the absence of damages, the innocent political party would obtain no exactly recompense for the wrongdoer's breach inwards doing what he had agreed non to do.

* The decisions (i) whether to accolade damages in addition to (ii) how much to accolade powerfulness accept trouble concern human relationship of factors such equally delay inwards intimating the claim in addition to prosecuting the action, if appropriate.

* As the courtroom was assessing the amount past times reference to hypothetical negotiations each political party was entitled equally component of that practise to adduce bear witness that it would receive got deployed inwards such hypothetical negotiations. The damages that could live awarded had to reverberate the case, dependent champaign to the overriding regulation that the damages were compensatory, non punitive.

* Ordinarily where a claim was based on subsequent profits the claimants had to demonstrate that in that location was a reasonable prospect of connection betwixt the breach of contract in addition to the subsequent profits.

is never comfortable alongside hypotheticals such equally the termination of non-existent negotiations inwards which each political party makes reasonable exercise of its bargaining position. It prolongs the toll of settling the dispute, delays the damages award, stretches the credulity, stresses the innocent IP possessor in addition to tests the outer limits of judicial imagination. Why non exactly materials the phoney methodology, accolade a large in addition to arbitrary amount for infringement/breach of contract in addition to brand the accused pay it if he can't come upwards up alongside a damn adept declaration why the amount should live reduced?

Merpel says, this sounds similar punitive damages instead of the compensatory sort, though.

Panda recipes here
Turkish fossil oil wrestling here
Female mud wrestling here
Other sorts of wrestling here, here and here