Zipher Ltd v Markem Systems Ltd & Anor

Zipher Ltd v Markem Systems Ltd & Anor

There was no more than an offer by Zipher of an undertaking to the High Court, which was not accepted or recorded as binding. The offer lapsed when Judge Fysh awarded claims 1 to 4 to Markem and did not revive upon appeal. Therefore, Zipher was not bound by any undertaking not to enforce claims wider than claim 5.

Parties
Appellant: Zipher Limited; Respondent: Markem Systems Limited; Respondent: Markem Technologies Limited
Jurisdiction
England and Wales
Judgment Date
10 February 2009
Procedural Posture
Civil Appeal / Appeal From High Court (patents Court) to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Patents, Undertakings to Court, Appeal Procedure
Intellectual Property Civil Procedure Patents Undertakings to Court Appeal Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Zipher Limited

Appellant

Markem Systems Limited

Respondent

Markem Technologies Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (patents Court) to Court of Appeal

Legal Issues

  1. 1 Whether Zipher was bound by an undertaking given to the High Court not to enforce patent claims wider than claim 5
  2. 2 Whether an oral offer of an undertaking, not recorded in writing or accepted by the court, is binding and enforceable
  3. 3 Whether such an undertaking, if it existed, revived upon appeal

Ratio Decidendi

There was no more than an offer by Zipher of an undertaking to the High Court, which was not accepted or recorded as binding. The offer lapsed when Judge Fysh awarded claims 1 to 4 to Markem and did not revive upon appeal. Therefore, Zipher was not bound by any undertaking not to enforce claims wider than claim 5.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed; Zipher is not bound by any undertaking not to enforce claims wider than claim 5.