Tuesday, 26 May 2015

Court of Appeal will not interfere with settlement agreement, adopts broad(ish) interpretation

H&M's underwired bras get no support from Court of Appeal, reports Jeremy under a typically inspired headline on PatLit: the patent litigation weblog. No point in my repeating what he has already done so well ... 

What was this all about? An infringer squirming uncomfortably, trying to grasp at the one straw within its reach, perhaps - it certainly looks like it. Interesting to note (though it is perfectly logical if you stop to think about it) that if the patent holder establishes that the settlement agreement precludes a validity challenge by the infringer, it loses the possibility of alleging infringement and is left with an action for breach of the settlement agreement. Also interesting to note that the court will adopt a fairly broad view of what the agreement means - as it did not specify what test should be used, any conventional test could be applied. That surely accords with what the patentee must have had in mind when the agreement was made, and the infringer should have realised that they would not be let easily off the hook by agreeing to terms that favoured them.

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