Andrew Lykiardopoulos QC, instructed by Simmons & Simmons LLP, appeared for the Fontem parties. James Abrahams was instructed by Powell Gilbert LLP and appeared for Nicocigs Limited.
The proceedings concern allegations of infringement and invalidity of Fontem’s patent for electronic cigarettes. The trial is due to be heard in May 2016. One of the defendants, Ten Motives, brought applications for summary judgment on the infringement claim or alternatively a stay of the claim against them pending EPO opposition proceedings. Nicocigs are another defendant to the action.
Ten Motives’ applications were dismissed. Norris J refused to construe claim 1 of the Patent in favour of Ten Motives without having the benefit of product descriptions or Fontem’s expert evidence. Norris J also dismissed the application to stay the proceedings. The EPO opposition proceedings were unlikely to conclude before 2019 so any stay granted would be lengthy. This would produce injustice for Fontem in that during the stay Fontem would be unable to assert its rights against Ten Motives. Further, it would distort the rapidly developing e-cigarette market to preserve a 35% market share for Ten Motives pending outcome of the opposition proceedings whilst the other defendants had the infringement cases against them determined in May 2016. Norris J therefore declined to stay the proceedings against Ten Motives whilst making it clear that Ten Motives would be entitled to make a further application at a later date if appropriate.