How does the Intellectual Property Office decide a case when the parties don't turn up? In Coupling Technology Limited v Coupling Solutions LLC, 23 August 2013, the IPO hearing officer A C Howard had to determine the unusual question of how to deal with evidence after the Defendant and its witnesses decided not to attend the hearing or be represented.
The case involved entitlement to two GB patent applications (GB 1018849.8 and GB 1107429.1) relating to couplings for use in connecting lengths of pipe. The case proceeded in the usual way and evidence was exchanged between the parties. The Defendant then requested a postponement of the substantive hearing from June to September or October 2013 'due to a scheduling conflict'. A case management conference followed where it was ordered that the hearing in June would go ahead. The Defendant then confirmed that it would file a skeleton argument for the hearing but neither it nor its witnesses would appear at the hearing. The Claimant's witnesses therefore did not need to attend the hearing as they would not be cross examined.
The Hearing Officer took account of Part 7 of the Patents Rules 2007 in relation to the treatment of evidence in these circumstances. Part 7 (rules 80 and 82) gives the officer wide discretion. In its skeleton argument, the Defendant made submissions that its evidence should not be struck out and that the Claimant's evidence should not be accepted as if every detail was correct just because the witnesses could not be cross examined.
The Hearing Officer decided that the Claimant's evidence should stand uncontested unless there is 'clear and unambiguous grounds' for rejecting it. The Hearing Officer did not go as far as to strike out the Defendant's evidence but the Defendant's evidence was to be given very little weight given the Claimant did not have the opportunity to put it to the test. Where there was a conflict between the evidence, the Claimant's evidence would prevail unless it leads to an absurd or totally implausible conclusion.
Needless to say the Claimant then did rather well at the hearing and the IPO ruled that it was entitled to all rights in GB 1018849.8 and it had partial rights vested in GB 1107429.1.
The case is a reminder of the importance of attendance at hearings at the IPO to make sure all the hard preparation work does not go to waste by reason of scheduling conflicts.
The author, Richard Binns, is a litigator in Burges Salmon's Intellectual Property team which is led by Jeremy Dickerson.