Farrow Holdings Group Inc. (Appellant/Respondent) v Secretary of State for Defence (Respondent/Applicant)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Birss,Mr Justice Birss |
| Judgment Date | 27 June 2014 |
| Neutral Citation | [2014] EWHC 2047 (Pat) |
| Docket Number | Case No: CH/2013/0552 |
| Court | Chancery Division (Patents Court) |
| Date | 27 June 2014 |
[2014] EWHC 2047 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
ON APPEAL FROM THE COMPTROLLER OF PATENTS
DECISION: BL O/353/13 [Dated 02 September 2013]
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Birss
Case No: CH/2013/0552
Mr Christopher Hall (instructed by IP Twentyone) for the Appellant
Mr Richard Davis (instructed by Secretary of State for Defence) for the Respondent
Hearing dates: 13 June 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal from the decision of the Hearing Officer, Mr Peter Slater, Deputy Director acting for the Comptroller, dated 2 September 2013. Mr Slater's decision (OL 0/353/13) dealt with an application for revocation of two patents by the Secretary of State for Defence. The patents were by then in the name of Farrow Holdings Group Inc. The patents are numbers GB 2 344 348 and GB 2 372 039. The 039 patent is a divisional of the 348 parent patent. The patents claim priority from 4 December 1998 and were granted on 26 February 2003 and 30 October 2002 respectively. Mr Slater decided that both patents were invalid and revoked them under section 72 of the Patents Act 1977. On appeal the patentee does not challenge the decision relating to the divisional. From now on in this judgment "the patent" refers to the 348 patent.
Mr Slater decided that the patent was invalid for lack of inventive step over three matters forming part of the state of the art. The first two were different instances of a prior use which took place in Kalamaki, Greece, before the priority date. The third item of prior art was patent EP 0 358 648 entitled "Abrasive blasting apparatus" and published in 1991.
Before Mr Slater the patentee was represented by Mr Nigel Farrow who I understand to be a director and shareholder of the company. The patentee had been professionally represented for most of the proceedings but on the day the hearing took place it was not. Mr Farrow was a litigant in person.
The first point taken on appeal is under Article 6 ECHR arising from comments made by the Hearing Officer at the beginning of the hearing. Those comments are said to have unfairly put Mr Farrow under pressure and led to proceedings which were unfair. Before me it is submitted that the consequence of this point is that the proceeding was not a fair trial and the matter should be retried in the Patent Office. Next the patentee submits that there is a point on construction of claim 1 of the patent in which the Hearing Officer fell into error. Then it is submitted that the Hearing Officer failed to assess the evidence properly and reached the wrong conclusion about the nature of the two prior uses which took place at Kalamaki. Finally it is submitted that, considered properly, the claims of the patent which are in issue are not obvious over the prior art.
The Respondent does not accept any of these submissions. The Respondent submits that the hearing before the Hearing Officer was entirely fair and proper and there is no ground for complaint under Article 6. The Respondent also submits that the Hearing Officer correctly construed the claims, reached the right conclusion on the evidence, and reached the right conclusion on inventive step.
Before me the appellant was represented by Mr Christopher Hall of counsel instructed by IP Twentyone, neither of whom represented the appellant below. The Respondent is represented by Mr Richard Davis, who did appear below, and is instructed by the Secretary of State.
Article 6 ECHR
What happened in this case was as follows. The hearing had originally been listed for three days to take into account the need to cross-examine various witnesses. However, before the hearing (and while the patentee was still professionally represented) the patentee indicated it did not wish to cross-examine its opponent's witnesses. By the time the hearing took place there was to be no cross examination of any witnesses by either side. Accordingly the matter was going to take less time than the three days which had been set aside. When the proceedings started at 10.30am Mr Slater introduced himself and then said the following:
"Could I just clarify one thing, we are not calling any witnesses and there is no cross examination anticipated. My guess is therefore that the three days that were originally estimated for this is a somewhat lengthy estimate and we will see how we get on today as to whether we can finish it in a day.
Tradition would have it that we start at 10.30, rise at 1.00, come back and 2.00, and finish for the day at 4.00. If I envisage that we can finish in a day I will ask your permission perhaps to extend those hours."
It is submitted that these comments put Mr Farrow under unfair pressure in making him think that the judge wanted the case to be done in a day and therefore unduly pressurised someone like Mr Farrow who was unfamiliar with court procedures. Before I consider that submission I will mention what else happened during the hearing. Mr Slater went on to note that since Mr Farrow was a litigant in person, opposing counsel, Mr Davis, should take that into account in making his submissions. This latter observation was the subject of mild criticism by Mr Hall but in my judgment there is nothing in that criticism. It was right for the Hearing Officer to invite counsel to bear in mind Mr Farrow's position and therefore, for example, for counsel to try not to use jargon without explaining what he meant and to take more time to explain concepts of law which might otherwise be something which would not need to be explained in detail in this specialist tribunal.
The case proceeded. Mr Davis made his submissions on behalf of the Secretary of State. They lasted from about 10.30 am until 2.30 pm (with a break for lunch from 1pm – 2pm). Mr Farrow then presented his case. Near the end of his submissions Mr Farrow said this:
"I rest my case. I do not have anything else to say here. Do I want a recess? The answer here is no, I do not. I look at you, and I am that sort of guy. It is going to cost me to come in tomorrow. It is going to cost me accommodation. It is going to cost me all the way down the road. I will stay here until 5.00 and I will answer your questions, but I have nothing to say after today because it was my heart my honesty and my belief."
The hearing continued until somewhere between 4.00pm and 5.00pm in the afternoon. It finished in a single day.
Mr Hall submitted that it was well established that owing to a litigant in person's inherent unfamiliarity with court proceedings, a tribunal should treat such a person with great care so as not to put that person under any undue pressure, citing Gee v Shell UK Limited [2002] EWCA Civ 1479 (per Scott Baker LJ with the agreement of Simon Brown and Sedley LJJ). I accept that submission. Mr Hall argued that the comments unfairly put Mr Farrow under pressure to finish the case in a shorter period than had been allowed or otherwise curtail his presentation. Alternatively he argued that the comments created the appearance of putting that sort of unfair pressure on Mr Farrow.
Mr Davis submits that there is nothing in this criticism. He points out that there was no evidence that Mr Farrow in fact felt under any pressure and relies on what Mr Farrow said near the end of his submissions to show that Mr Farrow did not feel under any pressure at all. The evidence shows that in fact Mr Farrow did not believe he was under any pressure and had said everything he wished to say during the course of the hearing. Accordingly there can be no basis for a submission that there is actual unfairness to the litigant.
Mr Davis also argued that the natural meaning of the words spoken by Mr Slater, taken in the overall context, cannot be construed as appearing to put any unfair pressure on Mr Farrow. Mr Davis submitted that all the Hearing Officer was doing was making a sensible case management indication at the start of the hearing. It was plain that, although the matter had been listed for three days, they were not necessary given that there was to be no cross examination and it was sensible to make the point that it may be possible to complete the matters in a single day.
The right of a litigant under Article 6 ECHR to a fair hearing plays an important part in the maintenance of the rule of law in a free and democratic society. In this case, although Mr Farrow and his companies had been professionally represented before the hearing, by the time the matter was called on he was acting alone. In this situation the Comptroller's Hearing Officer needed to take great care so as not to put such a person under undue pressure. In my judgment that is exactly what Mr Slater did. He recognised Mr Farrow's position at the outset and, by inviting counsel to take Mr Farrow's status into account, made it clear to Mr Farrow that he was to be treated fairly. It was right for Mr Slater to raise the question of the timing of the hearing at the outset since the case obviously did not now need three days to be heard. Nothing in the words which were actually used by Mr Slater at the time could be interpreted by an objective and fair minded observer as putting any unfair pressure on Mr Farrow. Furthermore there is no evidence that Mr Farrow felt under any pressure at all as a result of what the Hearing Officer said, indeed the evidence is to the contrary given what Mr Farrow said later in the day. Mr Farrow did not wish to come back on a second day.
In my judgment this ground of the...
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