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The policy behind section 68 is to encourage persons such as Schtz to register their licences or other interests under section 33 of the 1977 Act. Ratio |
Although the court should favour an interpretation which gives such a policy real effect, I do not consider that it is a policy which justifies the view that the point need not be pleaded. Ratio |
It would be a remarkably harsh result for a licensee who had failed to register, and would represent a potentially remarkable windfall for an infringer. Ratio |
Under the section as originally drafted, an infringer would be able to lie low during proceedings brought by an unregistered licensee, knowing that there was a complete defence to any financial liability for continuing infringement which the licensee could end by registering. Ratio |
Accordingly, Schtzs case on this point is a fortiori that of the successful parties in Fookes and Ketteman, where there was no continuing benefit for the party who had failed to plead the point. Ratio |
Was Werits case sufficiently pleaded to enable it to raise section 68? Ratio |
The second question is whether Werit did, in fact, plead its case sufficiently to enable it to rely on section 68. Ratio |
The Court of Appeal held that if, contrary to their view, Werit had to plead its case on section 68, it had not done so. Ratio |
Again I disagree. Ratio |
In its pleaded case, Werit not only denied that Schtz was entitled to the relief it sought, which included damages, an account, and costs, but, crucially, in my opinion, para 5 of Werits statement of case (i) put Schtz to proof as to its status as exclusive licensee, and (ii) stated that any alleged licence had not bee... |
Thus, Werits pleaded case denied Schtzs right to damages or costs, raised all the facts which were needed for a section 68 argument, and quoted the crucial words from that very section. Ratio |
CPR 16.5(2)(a) requires a defendant to state its reasons for denying any allegation, and para 13.3(1) of Practice Direction 16 merely entitles a party to refer to any point of law it relies on. Ratio |
At least in the circumstances of this case, it seems to me clear that there was a sufficient pleading for section 68 purposes. Ratio |
If there were any doubt about this, it would be put to rest by the fact that para 5 was in a defence to a claim brought under the 1977 Act by an exclusive licensee, whose claim form recorded that it had instructed solicitors and counsel who were acknowledged experts in the field. Ratio |
I should add that we were referred in this connection to evidence on behalf of Schtz as to how para 5 of Werits statement of case was understood by Schtz. Ratio |
I very much doubt that such evidence was admissible, but, if it was, it tends to support my conclusion. Ratio |
I therefore reach the same conclusion as the Court of Appeal on the procedural issue of whether it was open to Werit to rely on section 68, but for very different reasons. RPC |
The Court of Appeal thought that Werit had not pleaded the point but did not need to do so; I am of the view that Werit had to plead the point, and had done so. Ratio |
How does the costs sanction under section 68 work? Ratio |
The conclusion of the Court of Appeal, supported by Mr Meade QC on behalf of Schtz, was that section 68 simply serves to disentitle a licensee from recovering costs incurred in connection with an infringement action during a period that the licence is unregistered. Ratio |
Werits case, as advanced by Mr Thorley QC in the Court of Appeal and before us, is that if a claim for damages or an account by the licensee of a patent relates to an infringing act prior to registration of the licence, then the claimant licensee can recover no costs. Ratio |
Like the Court of Appeal, I cannot accept Werits case on this point. RPC |
It seems to me to produce an arbitrary and potentially penal result. RPC |
It is arbitrary because the sanction would be the same whether the licensee was claiming for one weeks infringement before registration and five years after, or for five years infringement before the registration and for one weeks after. RPC |
In the former case, it would also be penal. RPC |
The interpretation favoured by the Court of Appeal and Schtz does not produce a penal or arbitrary result, but it leaves the section with very little bite, as an unregistered licensee could avoid its consequences simply by registering and then starting the proceedings. Ratio |
It also seems to me to be difficult to reconcile with the wording of the amended section 68. Ratio |
The expression proceedings for such an infringement must be a reference to the proceedings for infringe[ment] before the transaction is registered, not to proceedings, before the transaction is registered, for infringement. Ratio |
Because the section is poorly drafted, that may not have been an insuperable obstacle to Schtzs case were there not a third interpretation, which was raised in argument by Lord Mance, and which I think is right. Ratio |
That interpretation is that, where a licensee successfully claims damages or an account for infringement of a patent, it cannot recover its costs in so far as they are attributable to the claim for damages or an account in respect of infringements pre-dating the registration of the licence, but it can recover costs att... |
In my view, this is the right interpretation, as it accords with the wording of section 68, and it reflects its purpose as described in LG Electronics. Ratio |
Apparently, this interpretation was considered in argument in the Court of Appeal, but rejected on the ground that it would be unworkable. Ratio |
I do not see why. Ratio |
Obviously in a case where there was a claim for pre- and post-registration relief, there would have to be an apportionment, and the apportionment would normally involve an element of rough justice. Ratio |
But that is a familiar state of affairs when it comes to costs. Ratio |
The consequence of the late registration of the second licence Ratio |
The final issue arises from the fact that the second licence was not registered until 15 November 2012, even though it was granted on 26 November 2009. Ratio |
The effect of the reasoning so far is that, if Schtz had succeeded on infringement, (i) it would not have been entitled to relief in respect of infringements before 29 April 2006 (when section 68 was amended), (ii) it would have been entitled to relief in respect of infringements after that date, (iii) it would not hav... |
Thus, the remaining issue, which is in respect of item (v) in the preceding paragraph, would have concerned costs in respect of infringements committed between 26 November 2009 and 15 November 2012. Ratio |
The Court of Appeal accepted Schtzs contention that what mattered was that it had been registered as a licensee in July 2008 and had remained registered as such at all times since that date, and the fact that it had surrendered the first licence in exchange for the second licence did not require it to go through the ex... |
This conclusion is reinforced by the fact that, although the register records the date of the licence as well as the name of the licensee, and the public has a right to inspect the register, those who wish to inspect the register have no right to see, or to be told of the terms of, the licence. Ratio |
Werit contends, however, that the natural meaning of section 68, and in particular the word becomes, demonstrates that Schtz should have registered the second licence. ARG |
Some support for that proposition may also be found in the fact that sections 32 and 33 appear to envisage registration of licences and other documents rather than of licensees and proprietors. ARG |
The Court of Appeal accepted that Werits argument had force, but concluded that Article 14 of the Enforcement Directive required it to adopt what Ward LJ referred to as an artificial meaning, as opposed to the natural meaning of section 68, so as to enable Schtz to rely on the registration of the first licence, even af... |
The Court of Appeal may have been right about the natural meaning of section 68 in the absence of Article 14; certainly its conclusion derives support from the reasoning of Aldous J in Minnesota Mining & Manufacturing Co v Rennicks (UK) Ltd [1992] FSR 118, Pumfrey J in Spring Form Inc v Toy Brokers Ltd [2001] EWHC 535 ... |
However, despite these decisions, there does appear to be an argument the other way. Ratio |
If the Court of Appeal was right about the natural meaning of the section, then I am very dubious about its invocation of Article 14 to justify a very different meaning to the section, especially as it has not been argued that Article 14 has direct effect. Ratio |
This final point throws up two questions which are not straightforward and were (understandably in all the circumstances) not as fully argued as they might have been. Ratio |
Accordingly, it would be safer not to decide the point, although I would emphasise that the reasoning of the Court of Appeal both as to the natural reading of section 68 and as to the justification for adopting an artificial meaning, should not be regarded as necessarily correct. Ratio |
Conclusion on the section 68 costs issue Ratio |
Accordingly, I would have allowed Werits appeal against the first section 68 judgment, but not to the extent to which Werit contended, and I would leave open the question of whether it should succeed on its appeal against the second section 68 judgment. Ratio |
However, as I would allow Werit’s appeal on the main, infringement, issue, my conclusions on the section 68 costs issues are, strictly speaking, obiter. Ratio |
The question in this case is whether the appellants BH (Mr H) and his wife KAS or H (Mrs H) should be extradited to the United States of America to face trial in Arizona. Ratio |
The United States has requested their extradition under the Extradition Act 2003 on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. FAC |
If they were the only persons whose interests had to be taken into account, the answer to be given to this question would have been relatively straightforward. FAC |
The crimes of which they are accused are very serious, and the public interest in the honouring of extradition arrangements for the prevention and punishment of crime is compelling: Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. FAC |
But the persons whose interests must be taken into account include the appellants children too. FAC |
It is obvious that the childrens interests will be interfered with to at least some degree by the extradition of either parent. FAC |
If both parents are to be extradited the effect on the family life of the children will be huge. FAC |
The weight to be given to their best interests lies at the heart of the issue whether the extradition of both parents, or either of them, would be proportionate. FAC |
The case comes before this court as an appeal against the determination of a devolution issue by the High Court of Justiciary. Ratio |
The appellants had argued both before Sheriff McColl in the Sheriff Court and in the High Court of Justiciary that it would be incompatible with their Convention rights within the meaning of the Human Rights Act 1998 for them to be extradited, as this would interfere with the exercise of their right to respect for thei... |
Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is just one year old. ARG |
Mr H is the father of the four younger children. ARG |
In a judgment delivered on 3 April 2008 after a hearing which began on 16 November 2007 the sheriff held that the appellants extradition would be compatible with their Convention rights. RLC |
So she sent the case of each appellant to the Scottish Ministers in terms of sections 87(3) and 141(1) of the 2003 Act for their decision whether either of the appellants was to be extradited. RLC |
On 29 May 2008 the Scottish Ministers ordered the appellants to be extradited to the requesting territory. RLC |
The appellants appealed to the High Court of Justiciary under section 103 read with section 216(9) of the 2003 Act. RLC |
On 29 July 2011, after proceedings in that court which the court itself acknowledged had been exceptionally protracted, the High Court of Justiciary (Lord Osborne, Lord Reed and Lord Mackay of Drumadoon) held that neither of the appellants was entitled to be discharged under section 87 of the 2003 Act: [2011] HCJAC 77,... |
There is no appeal to this court from a decision of the High Court of Justiciary under section 103 of the 2003 Act: sections 114(13) and 116. Ratio |
But the question whether the Scottish Ministers had no power in terms of section 57(2) of the Scotland Act 1998 to make an order for the appellants extradition because their extradition would be incompatible with their Convention rights is a devolution issue within the meaning of paragraph 1(d) of Schedule 6 to the Sco... |
An appeal lies to this court under paragraph 13 of the Schedule against the determination of a devolution issue by a court of two or more judges of the High Court of Justiciary. Ratio |
On 11 August 2011 the High Court of Justiciary granted leave to the appellants to appeal to this court in respect of the devolution issues relating to article 8 that arose during the hearing of the appeal under the 2003 Act. Ratio |
The appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. ARG |
The proper conclusion, they say, is that the proposed interference fails to meet the test of proportionality required by article 8. ARG |
So the Scottish Ministers had no power to order their extradition, as to extradite them would be incompatible with their rights and those of their children under article 8 of the Convention. ARG |
The facts FAC |
Mr H and Mrs H are both British citizens. FAC |
They are aged 48 and 34 respectively. FAC |
Mrs H is the mother of six children: A, who was born on 5 August 1997 and is 14; B, who was born on 16 March 1999 and is 13; C, who was born on 15 October 2002 and is nine; D, who was born on 16 February 2006 and is six; E, who was born on 5 May 2009 and is three; and F, who was born on 29 March 2011 and is one. FAC |
Mr H is the father of C, D, E and F. The father of A never lived with Mrs H (Miss S, as she then was) and has never had contact with that child. FAC |
The father of B lived in family with Miss S until they separated in 2001. FAC |
Mr H who was then living in Middlesbrough and had three children by previous relationships, was Miss Ss employer at the time of the separation. FAC |
He helped Miss S to find accommodation for herself and her children A and B in Middlesbrough. FAC |
In about 2002 they formed a relationship. FAC |
They were married in 2008. FAC |
Mr H spent a period from about 1989 to 1994 or 1995 living in the United States. FAC |
He and his then partner had a daughter J, who was born in about 1986. FAC |
When she was aged 6 and they were living in Arkansas she made disclosures to a school teacher which indicated that she had been a victim of sexual abuse by Mr H. This led to a police investigation and she was taken into care. FAC |
Mr H left Arkansas and moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. FAC |
But he remained in contact with Js mother, with whom he devised a plan for J to be returned to live with them. FAC |
She persuaded the authorities to return J to her sole care, and then took the child with her to Oklahoma so that she could resume her relationship with Mr H. Following their return to the United Kingdom that relationship came to an end. FAC |
Mr H formed a relationship with someone else by whom he had a son. FAC |
While he was living in that family he learned that J had again been taken into care. FAC |
But he took no steps to offer her a home with him in this new relationship. FAC |
After the birth of C, who was his first child with Mrs H, Js allegation that she had been sexually abused by Mr H when they were living in Arkansas came to the notice of the local authority in Middlesbrough. FAC |
It brought proceedings against him under the Children Act 1989 in the Family Division of the High Court for his contact with Miss Ss children to be terminated. FAC |
Mr H responded by mounting an attack on the local authoritys email system which led to the taking out of an injunction against him. FAC |
In a judgment which was delivered on 30 January 2004 His Honour Judge Bryant, sitting as a judge of the High Court, found that Mr H had sexually abused J on a number of occasions in Arkansas and Texas in 1993 and 1994. FAC |
He said that he was satisfied that Mr H remained a real and continuing danger to young girls, and continued the proceedings so that Miss Ss position in relation to his findings could be ascertained. FAC |
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