Bloomsbury IP/IT Briefing: December Teaser

There were three notable Court of Appeal judgments in December, all upholding first instance decisions.

The Court endorsed the granting of summary judgment in the Duchess of Sussex’s privacy and copyright infringement claim against Associated Newspapers, the publisher of the Mail on Sunday (HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810).

It upheld a first instance finding that four Illumina patents for DNA sequencing were valid and infringed in Illumina Cambridge Ltd v Latvia MGI Tech SIA & Ors [2021] EWCA Civ 1924. The Court’s judgment discussed obviousness, priority and a collocation of non-inventive features.

Finally, the Court discussed the construction of a copyright licence agreement in its judgment in Penhallurick v MD5 Ltd [2021] EWCA Civ 1770, an appeal from a ruling in the IPEC by HHJ Hacon.

At the High Court, two notable patent judgments were Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2021] EWHC 3401 (Pat), concerning a request for an injunction in FRAND litigation where a patent has been found to be valid and infringed but the FRAND trial to determine a global licence has not yet taken place, and Anan Kasei Co. Ltd & Anor v Neo Chemicals & Oxides (Europe) Ltd & Ors (Confidentiality No. 2) [2021] EWHC 3295 (Pat), the second instalment of a dispute over the disclosure of confidential material in a damages hearing.

There was an interesting trade mark judgment, in which Mr Justice Adam Johnson found that the sale of various goods under the brand VAGISAN infringed UK trade marks for VAGISIL. He rejected various defences and also found that a proposed rebranding (DR WOLFF’S VAGISAN) would also infringe the trade marks (Combe International LLC & Anor v Dr August Wolff GMBH & Co. KG Arzneimittel & Anor [2021] EWHC 3347 (Ch)).

At the IPEC, Nintendo obtained a Section 97A order blocking access to two websites providing links to pirated Nintendo Switch games (Nintendo Co Ltd v British Telecommunications Plc & Ors [2021] EWHC 3488 (IPEC)).

The EPO Legal Board of Appeal dismissed the appeals in the two patent cases where an AI system called DABUS was designated as the inventor, confirming the decision to refuse the applications. The detailed reasoning has not yet been published.

Two consultations have been launched that may be of interest to readers. One is by the UK IPO and concerns standard essential patents. The other, by the EPO, relates to the novelty requirement under the EPC and the lack of a grace period.

The IP/IT Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

Written by James Nurton

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