This judgement of the UK Patents Court concerned a number of procedural issues, including an application to stay the UK trial on infringement, validity and essentiality issues pending the final determination of opposition proceedings at the EPO. The patent had been upheld by the Technical Board of Appeal in amended form and the opposition proceedings remanded back to the Opposition Division to consider lack of novelty and obviousness arguments.
The Court refused to grant the stay. It applied the guidelines established by the Court of Appeal in Glaxo Group Ltd v Genentech Inc  EWCA Civ 23. The Court noted, inter alia, that one important factor was that the EPO opposition proceedings could potentially continue for several more years, whereas the UK proceedings could provide commercial certainty much sooner. The fact that IPCom’s business was primarily based on the exploitation of its patent portfolio did not affect the significance of this factor.
However, the Court has immediately allowed HTC to appeal this decision, as the UK Supreme Court has recently stated (in Virgin Atlantic v Zodiac  UKSC 46) that the Glaxo v Smithkline guidelines should be reconsidered. We will therefore hopefully have greater clarification from the Court of Appeal in the near future on the approach that the UK courts will take to stays of patent proceedings where there are concurrent EPO opposition proceedings.
Read the judgment (in English) here.
Head note: Rajesh Sagar and Graham Burnett-Hall