Patentee Can't Improve Dead Patent Dorsum To Life Again

picked this determination upwardly off the Butterworths All England Direct subscription-only series: Nikken Kosakusho Works as well as some other v Pioneer Trading Co as well as another, a Court of Appeal (Waller, Chadwick as well as Jacob LJJ) ruling from Midweek 29 June.

At trial, Mr Justice Isle of Mann held that claim 1 of a patent, relating to the blueprint of milling chucks, had been anticipated past times a prior patent. Kosakusho applied to rest the revocation as well as to better claim 1 of the patent as well as therefore equally to specify that the ‘predetermined depth’ of a groove formed inwards the chuck sleeve was to hold upwardly 3-5mm. Pioneer objected: Kosakusho should convey applied to better the patent during the trial as well as should non hold upwardly allowed to produce as well as therefore at such a belatedly stage. Isle of Mann J held it would hold upwardly oppressive to Pioneer to let an amendment which should convey been raised at trial as well as which, if allowed, would final result inwards farther litigation.

Kosakusho appealed, complaining that to disallow the amendment would final result inwards it losing an asset, whereas Pioneer could hold upwardly sufficiently compensated inwards costs.


The Court of Appeal dismissed Kosakusho's appeal as well as said equally follows:

* in that place was a full general requirement nether the Civil Procedure Rules that litigants should acquaint their entire illustration prior to trial. This regulation applied simply equally strongly to patent cases equally elsewhere.

* it would hold upwardly improper to let amendments afterwards trial which could convey been made beforehand. It was no response to reason that Kosakusho would lose a valuable property whereas Pioneer could hold upwardly compensated inwards costs; this was potentially as well as therefore inwards every illustration to which the Henderson v Henderson (1843) iii Hare 100 regulation applied.

thinks is precisely correct. Allowing a patent possessor to better his patent afterwards he has already failed inwards litigation to seek out its validity is a nightmare scenario, especially for whatsoever smaller society taking on a stronger, larger patent owner.

Nikken Kosakusho here
Pioneer Trading here