Lever Fabergé Limited v Colgate-Palmolive Company [2005] EWHC 2655 (Pat)

Case No HC-05-C01471[2005] EWHC 2655 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2005
Before
MR. JUSTICE LEWISON
Between
LEVER FABERGÉ LIMITEDClaimantCOLGATE-PALMOLIVE COMPANYDefendant
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MR RICHARD MEADE (instructed by Messrs. Bristows) for Claimant for The Defendant was not represented by counsel
Judgment
[1]This is an application for judgment in relation to a patent which deals with methods of wrapping and packaging soap bars. It is accepted by the defendant that the patent will lapse and the question for me is whether, in addition to giving judgment for the claimants, I should declare that the patent is invalid.[2]Mr. Meade, who appears on behalf of the claimant, has referred me to the objections to the making of a declaration raised by the defendant's solicitors and to the relevant authorities. The authority which I find most helpful for present purposes is the decision of Millett J in Patten v. Burke Publishing Co. Ltd. [1991] 1 WLR 541. The judge in that case recognised that it was the general practice of the court not to make declarations in default of pleadings or by consent. At page 543, Millett J referred to questions of fraud or negligence in contested matters and indicated that at the end of a trial the judgment could be referred to to see the basis upon which an award of damages had been awarded. He went on to say, at page 544:
"But in the absence of a judgment reached after hearing evidence a declaration can be based only on unproved allegations. The court ought not to declare as fact that which might not have proved to be such had the facts been investigated. Quite apart from this, however, it is clear from Wallersteiner v. Moir that the rule is a rule of practice only. It is not a rule of law. It is a salutary rule and should normally be followed, but it should be followed only where the claimant can obtain the fullest justice to which he is entitled without such a declaration."
[3]Millett J then went on, at the same page, to indicate that where matters have international repercussions, those who are abroad cannot be expected to understand the subtleties which underlie the court's reluctance to grant a declaration of right and to substitute a statement of the footing on which the judgment is given.[4]That, of course, was a case which concerned the practice of the court before the introduction of the Civil Procedure Rules. Under the Civil Procedure Rules it is no longer sufficient simply to allege facts. The claim form and, in the present case, the grounds of invalidity must each be supported by a statement of truth. In my judgment, the reluctance of the court to grant declarations without full investigation of the facts is less strong now that allegations have to be verified by a statement of truth than was formerly the case.[5]In the present case, in addition to the statement of truth accompanying both the particulars of claim and the grounds of invalidity, there is a witness statement sworn by Dr. Mulder, who is a European Patent Attorney and the Patent Group Manager for the Household and Personal Care Divisions of the claimant company. In paragraph 19 of his witness statement he says this:
"The patent claiming a priority date of 7 June 1999 is plainly invalid. Its inventive concept is alleged to be the use of transparent materials in production of the common stiffener/wrapper form of soap packaging. It will be apparent to anyone who has been accustomed to shopping in supermarkets in the last few decades use of transparent plastic for consumer goods, allowing the goods to be viewed before purchase, is and has been extremely common."
[6]Mr. Meade has also shown me one of the cited instances of prior art which does support that statement made by Dr. Mulder. I am, therefore, satisfied on the evidence that has been adduced that the claimant is entitled to the declaration which it seeks.[7]The precise form of the declaration that I was invited to make is simply a declaration that the patent is, and has at all times been, invalid. I do not consider that I should make a declaration in quite that wide form. There are many grounds upon which a patent may be alleged to be invalid. In my judgment, if the court is to make a declaration of this kind without giving a full judgment, the terms of a declaration ought to make it clear the basis upon which the court has reached the conclusion that the patent is indeed invalid. Accordingly, I propose to declare that the patent is invalid on the grounds pleaded in the grounds of invalidity served with the particulars of claim. MR. MEADE: I am grateful, my Lord. We will amend the order and lodge it. One matter on which the parties did agree was that there should be no order as to costs. MR. JUSTICE LEWISON: Yes.

Cited in 7 later judgments