Henry Ward appeared for the Defendant (“Carpmaels”), with John Wardell QC and Nick Zweck, in legal proceedings brought by the Claimants (“BASF”) for professional negligence.
Carpmaels failed to appeal an EPO decision revoking a patent for lack of inventive step, various internal safeguard systems having failed. The patent was for an emissions treatment system and method of use in the automotive industry. Sales of such systems were very large indeed. Carpmaels admitted liability for the failure, but disputed the quantum of the loss flowing from the breach, in particular given that identical protection was sought by BASF in the form of a divisional patent (which was also revoked by the EPO Opposition Division), and that time (unsuccessfully) appealed. Notwithstanding the existence and prosecution of the divisional patent, BASF contended that the total value of lost profits as a result of the loss of the chance to appeal the parent patent was in excess of US$1billion.
Carpmaels succeeded in demonstrating that the parent patent was highly likely to be invalid (and would have been considered to have been so by competitors), and that the possibility of an appeal had no commercial impact on what took place in the period prior to the divisional being put in place. Furthermore, BASF’s failure to gain the market share that they had hoped for was attributable to their technology being inferior to that of their competitors. As a result, the Judge, Adam Johnson J, awarded BASF only nominal damages for the breach.