The German patent troll IPCom was mentioned earlier this year in relation to this controversial decision to keep breaking the law, to keep violating the EPC. This is no laughing matter because this troll removes good products from the market... even in the UK, far away from Germany (showing that the patent system has gone all wrong).
HTC has stopped offering its phones for sale in the UK while it is involved in an intellectual property dispute. The Taiwanese company's online store currently lists all of its models as "out of stock" despite the fact they remain available in other nations. HTC has been involved in a long-running dispute with research and development company Ipcom over a wireless technology developed for car phones. To resolve it, HTC agreed to sell only mobiles with a workaround in the UK. However, Munich-based Ipcom has alleged it carried out tests earlier this year that showed no workaround had been implemented.
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An HTC spokeswoman said: "As a leading innovator, HTC takes intellectual property issues very seriously. "We are proactively investigating an infringement claim by a third party with respect to a single handset model." HTC was the first manufacturer to sell an Android handset, in 2008. A decade later, it sold part of its smartphone division to Google.
IPKat has followed for many years the case law on stays of infringement proceedings in the UK. Guidance on when a stay may be granted was provided in Glaxo v Genentech [2008] EWCA Civ 23 (IPKat post here). The Glaxo guidance was subsequently reformulated by the Court of Appeal in IPCom v HTC [2013] EWCA Civ 1496 (IPKat post here). A UK High Court decision has recently applied the IPCom guidance in a case where stay of proceedings was requested in view of a pending EPO opposition: Coloplast v Salts [2019] EWHC 1979 (Pat).
Coloplast is a Peterborough (UK) based manufacturer and the current market leader in ostomy products. An ostomy or stoma is a surgically made hole in the intestinal wall. An ostomy may be required in patients with severe disorders of the gut (e.g. Crohn's disease, ulcerative colitis or bladder cancer) or following injury to the bowel. There are many specialist products associated with ostomies, designed to make patients' lives more comfortable. The ostomy product market is currently worth approximately £120 million per annum.
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According to Guideline 10 of IPCom, it is important to consider the length of time it will take the EPO to reach a decision in an pending opposition proceedings. Both parties agreed that after the opposition division had given its decision, this would be appealed to the EPO Boards of Appeal. A European patent attorney for Salts estimated that the Boards of Appeal would reach a decision "in late 2021, but 'perhaps' earlier if accelerated proceedings are granted" (para. 21.). A solicitor for Coloplast provided a different estimate of between January 2022 and January 2024. The likelihood of a "ping-pong" effect between the Boards of Appeal and the opposition division was also considered. If this happened, Coloplast estimated that a final decision may take until 2028.
The Deputy Judge commented that there appeared "to be a tendency to stretch the estimates a little". The estimations were also likely to have been made difficult in view of the imminent introduction of the revised Rules of Procedure of the Boards of Appeal (RPBA) (IPKat post here). The revised rules aim to increase efficiency and reduce the likelihood of "ping-pong".
The witnesses both estimated that the UK trial would occur in 2020 (with an appeal in 2021 or 2022).
The Deputy Judge concluded that a final Board of Appeal decision could be expected around January 2022. "Ping-pong" was possible but unlikely. The UK Court of Appeal could be expected to rule on any appeal of the UK case in late 2021 (para. 29).