James Abrahams QC appeared as lead counsel for the Claimant (“CommScope”) in proceedings brought against the Defendant (“SOLiD”) for patent infringement.
The patents (“EP626” and “EP850”) related to distributed antenna systems (“DAS”) used in cellular wireless communications to distribute radio frequency signals transmitted from a base station into areas where the signal has been significantly attenuated. In response to the infringement allegations, SOLiD counterclaimed for invalidity, prompting CommScope to apply to amend EP626. Prior to the trial, the infringement claims and validity challenges relating to EP626 were settled, though the application to amend EP626 remained live. SOLiD’s validity challenge to EP850 was based on lack of novelty and obviousness over an earlier Korean patent application (“Oh”).
Mellor J found that the patent was invalid and, therefore, not infringed. The judge construed claims 1 and 7 of the patent, being the relevant claims for the purposes of the trial relating to point to multipoint DAS and digital expansion units, as having a broad scope. On that basis, and in light of the CGK, the disclosure in Oh anticipated claim 1 and rendered claims 1 and 7 obvious. The judge held that the Court did not have jurisdiction, pursuant to s.74(1) and 75(1) of the Patents Act 1977, to hear the application to amend EP626 because there were no longer extant proceedings before the Court through which validity was being challenged, those claims having been unconditionally discontinued. The judge gave guidance, obiter dicta, as to ensuring applications to amend are compliant with CPR 63.10(2)(b) so as to clarify matters prior to trial.