Sudarshan Chemical Industries Ltd -v- Clariant Produkte (Deutschland) GmbH, Court of Appeal (Civil Division), Moore-Bick LJ, Kitchin LJ and Floyd LJ, London, UK, 30 July 2013, Case No.  EWCA Civ 919
In a judgment handed down on 30 July 2013, the English Court of Appeal has dismissed an appeal brought by Clariant against a decision of the Patents Court that Clariant’s patent relating to organic pigments (“the 338 Patent”) was invalid on the grounds of obviousness (including by way of a Gillette defence) and added matter and that Clariant had made unjustified threats of patent infringement. The appeal also concerned a proposed disclaimer.
In relation to the ‘traditional’ obviousness issues (which concerned primarily proposed claims 12 and 13 of the 338 Patent), Kitchin LJ, speaking for the Court, rejected Clariant’s criticisms of the first instance Judge’s approach to the evidence before him and hence dismissed the appeal against the finding that claims 12 and 13 were obvious. Kitchin LJ also held that the first instance Judge had been right to accept Sudarshan’s ‘Gillette defence’, i.e. that both processes that Sudarshan had used to make its (allegedly infringing) product were routine and obvious implementations of the teachings of the prior art (in this case, Clarion’s earlier ‘517 patent) such that, to the extent that Sudarshan’s activities fell within the scope of any of the claims of the 338 Patent, such claims were invalid.