|
Oct 2010: Müller supplies dairy products and RTS supplies and installs machinery for packaging food products. Müller selected RTS to supply it with a system to package yoghurt pots and start was agreed under a letter of intent that set out the full contract sum and it also stated that the final contract would be based on Müller’s amended form of MF1 and for a limited four-week “initial” period. Negotiations dragged and the initial period came and went and the letter of intent was not issued. RTS worked and Müller paid until a dispute aose. RTS refused to finish installing the equipment. Mr Justice Clarke of Technology and Construction Court found that the letter of intent had expired at the end of the initial period and did not govern the relationship between the parties thereafter. It also decided that as the parties continued to carry out works after the letter of intent had expired, they intended to create legal relations and enter into a contract but was not the MF1 terms but one that excluded some of the MF/1 terms (limited contract). RTS now argued that no contract was concluded after the letter of intent expired and as there was no formal contract RTS was entitled to bring a quantum meruit claim. The Court of Appeal decided that there was no contract between the parties because the MF1 terms included a “subject to contract” clause and therefore that no contract was formed. The Supreme Court confirmed that the letter of intent had expired at the end of the initial period; and conduct thereafter suggested that parties intended to enter into a contract and amounted to a waiver of the “subject to contract” clause and that therefore the full MF1 had been entered into. Comment: Three separate court proceedings! Three different decisions! Make sure letters of intent are for (i) a limited scope of works and (ii) a limited period of time and (iii) for a limited maximum sum and (iv) must specify what will happen when the letter expires and the default position if the expected position does not occur. RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Company KG (UK Production) (2010). (The Müller case)
On 1 July 2010 the European Commission published a Green Paper setting out policy options for introducing a European contract law for consumers and businesses.
more...
FNM Corporation Ltd v Drammock International Ltd & Anor [2009] EWHC 1294 (Pat) (15 June 2009)
A patent claiming an aerosol spray containing water and dimethyl ether was invalid for lack of novelty and obviousness in light of prior art and common general knowledge. Communications from the claimant and its solicitors conveyed threats of proceedings for patent infringement but were protected by s.70(2A)(b) of the Patents Act 1977 because the claimant did not have reason to suspect that the patent was invalid at the time of the threats. Court: High Court (Chancery Division) (England and Wales)
Red Spider Technology v Omega Completions Technology, Ch Div (Mann J), 21/1/10 Claims for infringement of a patent concerning a water-based injection valve for use in oilfield exploration, and for infringement of design right in the valve, both failed. Further, the patent was invalid for anticipation and obviousness. Properly construed, the patent did not claim the feature relied on. Further, the priority document relied on did not disclose all the integers of Claim 1, and so the sale of the valve by the patentee before the patent application date anticipated the patent. Further, the invention was obvious over the common general knowledge and a piece of prior art. The defendant’s reproduction of the valve by working from the patent drawings was not copying of the valve design for design right purposes because the ideas taken were at a high level of abstraction. Court: No court set yet
BSW Ltd v Balltec Ltd [2006] EWHC 822 (Ch) (11 April 2006)
An application for pre-action disclosure of design drawings belonging to a potential defendant to a design right and copyright claim was rejected. The applicant alleged that it was impossible for the respondent to have designed, produced and tested a range of products in a short period of time without copying the applicant’s designs. However, the applicant was unable to particularise its claim without pre-action disclosure of the respondent’s designs. The claim was speculative and based on uncorroborated statements of impression and theory not supported by expert evidence, and disclosure might damage the respondent, whose designs were secret and alleged to be valuable. Court: High Court (Chancery Division) (England and Wales)
Free Encrypted Internet Videophone
A new low bandwidth, high performance encrypted videophone has been launched by an Anglo-Irish consortium allowing users to turn their computers and mobile phones into Videophones.
Featuring exceedingly low bandwidth, over 10 times smaller than competitors, the group claims that the average user should never exceed their monthly allowance.
"Unlike other well-known video-messaging systems, the users don't see the network clogged up by VoIP bandwidth" says its CEO.
Far Out Productions Inc v Unilever UK & CN Holdings Ltd & Ors, Ch Div (N Strauss QC), (16 December 2009)
Where an action for copyright infringement against four defendants had been settled as against the first three and discontinued as against the fourth, the claimant was liable for the costs the fourth defendant had incurred until the date the notice of discontinuance was served. Costs were awarded on an indemnity basis because of the claimant’s unreasonable behaviour in joining the fourth defendant, delaying progress and refusing to negotiate. The action had concerned infringement of copyright in a sound recording used in an advertisement. Court: High Court (Chancery Division) (England and Wales)
Tate & Lyle Technology Ltd v Freres [2009] EWHC 1312 (Pat) (16 June 2009) A patent concerning the crystallization of a sugar substitute, malitol, was invalid for lack of novelty and because the claim was a discovery and not an invention. The patent claimed the use of a by-product of the malitol production process to modify the form which the malitol crystals took. However, a skilled person following the teaching of a number of prior art papers would infringe the patent, since in reality the industry had been using the by-product to control malitol crystal habit without knowing it. The patent merely informed of a property of the by-product which had been discovered, and explained why malitol crystals took the form they did. Court: High Court (Patents Court) (England and Wales)
Nanjing Automobile (Group) Corporation & Ors v MG Sports & Racing Europe Ltd & Anr, Ch Div (Sir William Blackburne), 19/2/10 An action for trade mark infringement and passing off, brought by the Chinese transferees of the business and assets of the British car manufacturer MG (in administration in 2005), was successful. The defendant English company had purported to buy the “MG X POWER” trade mark from the liquidator in 2007 along with the sports car arm of the business, but on a proper construction of the 2005 agreement with the Chinese purchaser, all the trade marks including the MG X POWER mark were transferred to the Chinese in 2005. The purported agreement to sell the mark in 2007 was therefore of no effect. Court: High Court (Chancery Division) (England and Wales)