The EPO, national courts, and the real question

Thanks to the IPkat for details of the decision of the Court of Appeal in Unilin Beheer v Berry.

Essentially this case involves the impact of a subsequent order for revocation of a patent by the EPO upon existing rulings and remedies in national infringement actions. Within the patent framework, the judgment of Jacob LJ is clear and sensible: the focus should not be on which court is "top", which seems to have comprised much of the argument, but rather on the questions before the decision maker (validity, infringement, post grant opposition, revocation), with each decision maker operating in context.

From a wider perspective, competition and human rights questions can impact upon this analysis, and I can do no better than refer you to the IPkat on this: http://ipkitten.blogspot.com/2007/04/patents-damages-revocation-and-estoppel.html
It is also noteworthy in this context that although the Court of Appeal does refer to a similar decision in Scotland, Coflexip v Stena Offshore, it does not note that that case also considered (and rejected) human rights questions.