The UK Court of Appeal has ruled – for the UK, at least – that if a UK court rules a patent valid, even a successful opposition at the EPO won't affect the outcome of the UK decision.
The Register tells the story of a patent for flooring. Unilin filed its patent at the EPO, and when the EPO granted the patent, filed a patent in the UK, and used this patent to sue Berry and B&Q for damages. Berry and B&Q asked the UK court to halt proceedings while they went into opposition at the EPO.
Lord Justice Jacob ruled that the UK proceedings could move ahead, irrespective of the EPO's decision. Tough luck, he said, the patent system is a mess and it's better to force the loser to pay, even if the patents were invalidated, than to let such proceedings drag out. The two firms settled out of court after the ruling.
Apart from the eerie echoes of the RIM vs. NTP case, where RIM settled out of court to avoid being shut down for a handful of invalidated patents, Jacob's decision is significant for several reasons.
First, it may explain Jacob's apparent support for the proposed centralised European litigation system for patents, called EPLA. If it's acceptable, in his words “for a man to have to pay for doing what, with hindsight, we know to have been lawful”, in order to promote “business certainty”, then EPLA, with its focus on keeping the “customer” (the patent holder) happy, makes perfect sense.
Second, it demonstrates how firms are able to exploit slow EPO processes to blackmail competitors in national markets (where the action almost always is). The EPO puts great store in its opposition procedures. The theory goes: OK, we can't examine patents properly, due to the sophistry used in most patent filings. But the market has full ability to oppose bad patents! End of problem.
The EPO's opposition process is used to maintain the EPO's superiority myth. But close examination (sorry!) and the Unilin vs. Berry and B&Q shows that it's just one more loophole for clever lawyers to exploit.