CINPRES BACK IN COURT, BUT TO NO AVAIL

Cinpres back in court, but to no avail

Further thanks are due to Simon Haslam for spotting Cinpres Gas Injection Ltd v Melea Ltd, another round in the frankly tragic litigation between two companies over a patent that Cinpres lost following a bout of legally sanctioned perjury. Earlier hearings are noted on this weblog here and here. Now, this time Mr Justice Mann was asked to adjudicate on an application by Cinpres for a declaration that, even though it was not entitled to be registered as the patent's owner under the Patents Act 1977 s.37, it was entitled to be granted a licence under the same provision "to continue doing what it has been doing in the past". This claim was a bit of an optimistic punt into the judicial stratosphere based on the recent Court of Appeal decision in Yeda Research v Rhone-Poulenc [2006] EWCA Civ 1094 at paragraph 13 where Lord Justice Jacob said:

"This does suggest that there may be a jurisdiction to grant even an ousted patentee a licence. But, even if there is, it would often not be a proper exercise of the Comptroller's discretion, having decided that a person had no entitlement whatsoever to a patent which he had applied for in breach of someone else's legal rights, to decide that nonetheless that person (or his licensee) should have a licence under the patent. Things may, I suppose, be different if the ousted patentee has in good faith made a considerable investment in the invention, particularly if the true owner had stood by for a number of years allowing this to happen".

Mann J was not moved by the notion that this triggered an interpretation of s.37 that enabled the relief sought to be granted. He said, at paragraph 10:

"For a claimant to an interest to be able to have a remedy it must have some element of legitimate claim. If it is determined not to have such claim then section 37 does not give jurisdiction to give some sort of consolation prize because fairness demands it".

The fact that Cinpres made a claim of proprietorship that was dismissed did not give it a legitimate claim. The IPKat agrees with Mann J's approach, although he is increasingly left feeling that, if the existing law cannot be tortured into enabling a company in Cinpres' position to gain some sort of right in the invention, given the history of the dispute, then the law could do with a little subtle amendment.