On 7 February, the Court of Appeal (LJJ Tuckey, Moore-Bick and Jacob) refused the appeal of Inpro against the judgment of Pumfrey J which held that Inpro’s patent No EP (UK) 0 892 947 was invalid for obviousness. The full judgment is now on BAILII ([2007] EWCA Civ 51). It is not an earth-shattering judgment – the essence of the appeal was that the judge had failed to apply well established principles correctly. The Court of Appeal was in fact happy with all aspects of the first-instance judgment and, in relation to the major claim of Inpro was politely dismissive: ‘Once you have the idea of a proxy to do as much work as possible, sending single files to reduce overhead just follows. It is hardly clever to realise that you are not bound by the web protocols when you have deliberately isolated the handheld from the web’.
In fact the main point of interest, other than for the parties themselves, may actually turn out to be the comments about a procedural decision early in the process to use the streamlined procedure. LJ Jacob commented ‘At an early stage in the proceedings, Laddie J made an order for it to be decided by the streamlined procedure. Pumfrey J did not actually criticise this decision but said, rightly in my view, that in retrospect, it was inappropriate. He disagreed with Laddie J’s suggestion that whenever one side proposed such a procedure, the onus lay on the other to raise a convincing objection to its use. I agree. The decision to use that procedure must depend on all the circumstances of the case, which in particular includes its commercial importance, degree of complexity, the commercial and financial position of the parties and so on. In essence the decision is one of proportionality. By saying this, it should not be thought that I regard the streamlined procedure as one to be used rarely. On the contrary there will be – or should be – plenty of smaller cases where it will be the best way forward. And parties should always consider (and discuss) whether it would be sensible to use it whatever the size of the case.’ It all sounds fine but careful analysis and argument may well mean that these comments can be used to scupper the use of the streamlined procedure in any big money case. The suggestion by Laddie J that there should be, effectively, a presumption in favour of its use seems unobjectionable if the courts are serious about lowering dispute costs and providing speedy resolution.
