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Should procedural errors made during the process for granting a patent allow one to challenge its existence? In a recent case, the alleged error went to the heart of the patent, it being claimed that the owner had excluded the UK from the ambit of its application for a patent via the centralised procedure of the European Patent Office (EPO).
Philosophically, one might argue the point either way. On the one hand, a patent gives a person an exclusive right to exploit an invention for 20 years, and therefore a considerable commercial advantage. The procedure to be followed is clear. Why should a third party be at risk during that time of paying significant damages for infringing a patent that was inappropriately granted? Conversely, mistakes happen. Is it fair to deny a patent owner a full opportunity to make a return on his investment because of a procedural error?
In the UK, the legislative grounds for revoking a patent do not include procedural error. This can be justified on the basis of legal certainty, legitimate expectations and speed and cost of patent litigation, among other reasons. The question in the instant case was whether the European Convention on Human Rights changes that position; does a third party have a back door right to trade in the UK free of a patent unless the patent has been properly granted?
In its judgment of 20 December in Virgin Atlantic Airways v Jet Airways (India) & ors , a case involving lie-flat business class aircraft seats, the Court of Appeal’s answer was a resounding ‘no’.
In fact the challenge did not even get off the ground, as the court held that acts and decisions of the EPO, a body established by international treaty, did not fall within the jurisdiction of the UK courts for convention purposes. Nor was the mere automatic recognition of the EPO’s decisions provided in UK law sufficient to provide a “jurisdictional link”. In any event, Article 6 (right to a fair trial) did not create a substantive right to challenge a patent where none otherwise existed.
As it was, on the facts of the case, no third party had been misled; on the face of the patents register the patent was shown as being in force in the UK, and the alleged procedural error had only been unearthed following a detailed trawl through the records when litigation arose. Indeed, the EPO had itself reviewed the ‘error’ and determined that it had been right to grant the patent for the UK.
Patent owners can once again sleep comfortably in their seats in the knowledge that after the EPO has granted their patent, it cannot be attacked on the basis of procedural errors made during the grant process, such as paying a fee a day late. Common sense has prevailed in rejecting what was, at the end of the day, a technical legal argument.
By Claire Bennett, partner in the intellectual property and technology group, DLA Piper