Tuesday, 9 June 2009

Evidence in process patent infringement proceedings: can you help?

PatLit publishes this evening a reader's request for information:
"In process patent infringements the problem is that the patent holder has considerable problems in presenting evidence on the process actually used by the alleged infringer. In some cases the reversed burden of proof in TRIPS Article 34 (or rather its domestic implementation) may be applied. This does not however resolve the problem. The alleged infringer is usually more than eager to present evidence (via expert witnesses) that the process used is completely different from the patented process. The patent holder and the court may naturally rely on these expert witnesses, but due to risk of bias, since the witnesses have been called by the alleged infringer, the best way to resolve this evidentiary problem would be for the court to engage an independent expert who would visit the plant in order to find out what process has been used.

Now to my question: I have heard that Mr Justice Laddie may have used this type of independent expert at least in one case where the process was located in India. Have I been misinformed or is there such a case?"
Does anyone know? If you do, can you please post the response below so that all PatLit readers can share it?


gyges said...

Is the Rabbis-and-Acesulfame-K breach an example of what you're asking?

Richard said...

I think you may be thinking of Merck v Generics (http://www.bailii.org/ew/cases/EWHC/Patents/2003/2842.html).

However, in this case: "The action is based on the confidential process description which had been supplied by the defendant."