Active Photonics AG v. (1) GB Solo Limited (2) Solo Thermal Imaging Limited, Patents County Court, London, UK, 27 February 2013,  EWPCC 9
The Patents County Court held that the second defendant’s defence had been served out of time following a previous unless order and granted the patentee’s claim for infringement against the second defendant.
Active Photonics commenced infringement proceedings against GB Solo in respect of its patent, EP 1 107 041, entitled “Mask to display an image taken with a camera”. Active Photonics later applied to join Solo Thermal Imaging into the proceedings. Following a series of delays, HHJ Birss QC granted an unless order that required Solo Thermal Imaging to serve its Defence by 10 December 2012 in default of which it would be debarred from defending the claim and judgment would be entered for Active Photonics.
Solo Thermal Imaging served its Defence on 13 December. No application for relief against sanction was made by Solo Thermal Imaging and Active Photonics applied for judgment against Solo Thermal Imaging on the ground that it had failed to comply with the unless order.
HHJ Birss QC granted Active Photonics’ request noting that there had been no attempt at a proper excuse for failing to comply with what an entirely fair case management order. HHJ Birss QC ordered an injunction and delivery up but refused to stay the case against GB Solo Limited. HHJ Birss stayed the request for damages and decided to conduct the summary assessment of costs in writing in view of the lack of detail in Active Photonics’ Schedule of Costs.
Read the judgment in English here.
Head note: Rob Fitt