Fresenius Kabi Deutschland GmbH & Ors v Carefusion 303, Inc

Fresenius Kabi Deutschland GmbH & Ors v Carefusion 303, Inc

CareFusion did not validly exercise its right to elect to consent to revocation under paragraph 6 of Norris J's order because no re-amended statements of case had been served and its letters did not state that consent to revocation was as a result of the matter introduced by the re-amended statements. The order did not compel Fresenius to serve the re-amended statements. The proceedings had not come to an end, but CareFusion should be given a short further period to serve evidence, failing which it would be debarred from adducing evidence at trial.

Parties
Claimant/part 20 Defendant: Fresenius Kabi Deutschland GmbH; Claimant/part 20 Defendant: Fresenius Kabi AG; Claimant/part 20 Defendant: Fresenius Vial S.A.S.; Claimant/part 20 Defendant: Fresenius Kabi Limited; Defendant/part 20 Claimant: CareFusion 303, Inc.
Jurisdiction
England and Wales
Judgment Date
12 October 2011
Procedural Posture
Civil (patent Revocation and Infringement) / Interlocutory Application for Debarring Order and Case Management Directions
Outcome
Unless order made: CareFusion to be debarred from adducing evidence at trial unless it serves written evidence by 4 p.m. on 14 October 2011. Permission to appeal granted. Application to vacate trial date refused. Interim costs order made.
Legal Topics
Patent Revocation, Patent Infringement, Case Management, Costs Orders, Amendment of Pleadings
Intellectual Property Civil Procedure Patent Revocation Patent Infringement Case Management Costs Orders Amendment of Pleadings

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Parties

Fresenius Kabi Deutschland GmbH

Claimant/part 20 Defendant

Fresenius Kabi AG

Claimant/part 20 Defendant

Fresenius Vial S.A.S.

Claimant/part 20 Defendant

Fresenius Kabi Limited

Claimant/part 20 Defendant

CareFusion 303, Inc.

Defendant/part 20 Claimant

Procedural Posture

Civil (patent Revocation and Infringement) / Interlocutory Application for Debarring Order and Case Management Directions

Legal Issues

  1. 1 Whether CareFusion validly exercised its right to elect to consent to revocation under paragraph 6 of Norris J's order
  2. 2 Whether Fresenius was compelled to serve re-amended statements of case
  3. 3 Whether CareFusion should be debarred from adducing evidence at trial

Ratio Decidendi

CareFusion did not validly exercise its right to elect to consent to revocation under paragraph 6 of Norris J's order because no re-amended statements of case had been served and its letters did not state that consent to revocation was as a result of the matter introduced by the re-amended statements. The order did not compel Fresenius to serve the re-amended statements. The proceedings had not come to an end, but CareFusion should be given a short further period to serve evidence, failing which it would be debarred from adducing evidence at trial.

Court Disposition

Unless order made: CareFusion to be debarred from adducing evidence at trial unless it serves written evidence by 4 p.m. on 14 October 2011. Permission to appeal granted. Application to vacate trial date refused. Interim costs order made.

Orders

  • Unless CareFusion serves its written evidence by 4 p.m. on 14 October 2011, it shall be debarred from adducing evidence at trial.
  • Permission to appeal granted to CareFusion.