Publications
European IP Bulletin, Issue 23, June - Patents
Patents
7. Nokia Commits Not to Assert Any of its Patents Against the Linux Kernel
On 25 May 2005, the Finnish mobile phone company, Nokia, formally committed to supporting the Linux open source community. Nokia also stated that they would not threaten any future versions of the operation system building block. This support is crucial to the future of Linux. It was recently reported that there are almost 300 patents that would be infringed by the Linux kernel. IBM, the greatest supporter of Linux, has also recently stated that they do not have any intention to assert their patents unless they are forced to defend themselves. Nokia welcomes similar acts of support to Linux from other companies, but states that the Nokia patent pledge does not apply to any person or organisation asserting its own patents against the Linux kernel.
Development of the open source operating system and
applications surrounding the Linux kernel are co-ordinated by
Finn Linus Torvalds. However, Nokia did not make the patent
amnesty declaration for philanthropic or nationality reasons.
There were clear business motivations for the commitment. It is
presumed that Nokia appreciates the support of open source
community for the introduction of the Nokia 770, their first
Internet tablet. The obvious common competition is Microsoft,
which is increasing its influence in the promising area of
wireless technologies.
8. Tercia Inc v Avecia Ltd - Summary Judgement in Patent Disputes
On 20 May 2005, Justice Mann ruled on an application for summary judgment in the case of Tercica Inc. v Avecia Ltd.and others [2005] EWHC 984 (Ch).
The dispute centred on an alleged patent infringement, the patent in the suit relating to a medicament for improving or promoting growth in mammals. Tercica Ltd, a licensee of the patent, filed an infringement claim against Avecia Limited. Avecia counterclaimed for revocation of the patent, and then applied for summary judgement for revocation on the grounds of lack of novelty, and that the subject matter of the patent was unpatentable for being a method of treatment of the human body. If successful, the application would also result in the striking out of Tercica’s infringement action.
Ultimately, the judge refused to grant summary judgment. In dismissing the application, the Court followed the principles laid down in the case of Caledor Productions v Melville namely that the applicant must show that the other party has no real prospect of success. The judge did not believe that Avecia had met this high standard, as although Avecia had provided expert evidence on the matter, this was countered by expert evidence from Tercica, and without the evidence being tested under cross-examination, the conflicting nature of the evidence meant the judge concluded that there was a real prospect of the patent being held valid.
The judgment clearly demonstrates how difficult it is to obtain summary judgement in patent cases. The applicant seeking such relief has to provide a definite and clear-cut case in his favour. If there remains doubt in respect of the applicant’s contentions, which requires further exposition and elaboration of evidence, it will result in the matter progressing to trial. Given that patent litigation generally involves complex technical matters that often require detailed expert evidence scrutinised under cross examination, in particular regarding the construction of both the prior art and the patent, it remains difficult to obtain a summary judgment revoking a patent.
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