James Mellor QC and Michael Tappin QC recently appeared in the High Court in HTC v Gemalto [2013] EWHC 1876 (Pat), James Mellor QC appearing for the Defendant alongside Guy Burkill QC and Miles Copeland, and Michael Tappin QC appearing for the Claimant with Ben Longstaff. The case concerned an action for revocation of two of the Defendant’s patents concerning smart-card technology, the “865 patent” and the “9062 patent”, and a counterclaim for infringement.
Regarding the 865 patent Birss J accepted the Claimant’s arguments that independent claims 1, 8, 15 and 18 were not entitled to priority, but held that claim 3 (as dependent on claim 1) was so entitled. Having decided that claims 1, 8, 15 and 18 were not entitled to priority the judge went on to find each of them obvious over an intervening publication by the patentee, but in any event claims 1 and 15 were not novel over prior art from before the priority date. Although claim 3 was held to be entitled to priority and was not obvious, it was not infringed by the Claimant’s devices.
Regarding the 9062 patent the judge held that the patent was both lacking in novelty and obvious over the prior art, but that had it been valid the Claimant’s devices would have infringed.