On 2 March 2011 the Barcelona Court of Appeal handed down a judgment reversing a decision from Commercial Court n.4 of Barcelona, which rejected the patent owners’ ‘lis pendens‘ defence against a revocation action filed by L.A. and others based on lack of inventive step.

In its judgment of 2 March 2011, the Court of Appeal noted that L.A. had previously filed a revocation action against the same patent invoking lack of novelty. According to the Court of Appeal, Article 400 of the Civil Procedure Act prevents L.A. from challenging the validity of the same patent invoking a different nullity ground.

Click here for the full text of this case.

A full summary of this case has been published on Kluwer IP Law.


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2 comments

  1. One writer said the bvrseat thing for one to do is to put his thought on paper for his peers to probe. I have for some time looked at how you respond to peoples’ ideas and to say the least it is shocking. The venom and tone of your responses does not invite debate but dismissive. I read your response to Paul Michael Keichel, a candidate Attorney in some law firm last year about the Protection of Information Bill. I’m sure when Paul first laid his eyes on your article would have been excited that his article caught your attention but what he felt after that I can only speculate. Whether Paul will be able to muster the courage to write again remains to be seen. I don’t think this necessarily means that you have convinced him but I suspect that it is because you have managed to scare him away. I don’t necessarily believe that people must be timid when they disagree but also don’t think that they should be cocky. The Concourt itself has called on judges to show decorum when they disagree with their colleagues. I think we should take a cue from this.I think when we debate we must leave a space to be proved wrong. I’m sure that when Gaunlett wrote his speech he though he got it all right. This, I believe is the same premise from which your response is predicated. You may also be proven wrong. I’m sure you will welcome this but your response tells me that you believe you have the final word. Your response has the potential of polluting what is suppose to be an interesting debate. I wonder if Gaunlett will border to respond because if he does he will have difficulties resisting using the same venom. If he uses the same venom descent men and women might opt out of the debate. If this happens the debate will be impoverished. Despite this, I must say that I agree with the substance of your response. Appointing people with judicial background and those without to the Concourt has both advantages and disadvantages. I think a balance need to be struck. If I had to choose between somebody who has judicial background or an academic I would go for an academic. People with a judicial background tend to be very legalistic and over obsessive with “certainty” than whether or not the judgment is fair and just. The nature of the constitution calls for value judgments to be made and this does not seat well with judges from a certain school of though. There is a litany of judgments indicating how the Supreme Court of Appeal has resisted the application of the constitution in the area of Contract Law and others on the basis of “certainty”.I also agree with Gaunlett on the issue of the language used by Concourt judges although he is not the first one to raise this concern. In this regard I think Sachs was the biggest culprit. Despite the fact that I have done a bit of philosophy in university I always found it excruciating to read his judgments. I wonder if the poor and the illiterate whose lives and rights are affected by the judgments are able to understand them. I guess this is one of the disadvantages of appointing a judge who is so immersed in theory. Be that as it may, people with judicial background are also fond of their legalese.

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