Verathon Medical (Canada) ULC v Aircraft Medical Ltd [2011] ScotCS CSOH_60 (30 March 2011)

Verathon Medical (Canada) ULC v Aircraft Medical Ltd [2011] ScotCS CSOH_60 (30 March 2011)

The counterclaim for revocation was a consequence of the infringement action and would not have been brought otherwise. Although the defenders did not succeed in the counterclaim, their challenge was justified given the pursuers' broad interpretation of the patent and the high damages claimed. Justice required awarding the defenders a significant proportion (75%) of their expenses for the counterclaim, as well as full expenses for the principal action and amendment motion. Certification of skilled witnesses and an additional fee (excluding factors (d) and (g)) were appropriate for the defenders.

Citation
[2011] ScotCS CSOH_60
Parties
Pursuer: Verathon Medical (Canada) ULC; Defender: Aircraft Medical Limited
Jurisdiction
Scotland
Judgment Date
30 March 2011
Procedural Posture
Patent Infringement and Counterclaim for Revocation / Post Trial, Motions for Expenses
Outcome
Pursuers' motions refused; defenders awarded expenses and additional fee as specified.
Legal Topics
Patent Infringement, Patent Validity, Costs and Expenses, Expert Witness Certification, Additional Fee Awards
Intellectual Property Civil Procedure Patent Infringement Patent Validity Costs and Expenses Expert Witness Certification Additional Fee Awards

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Parties

Verathon Medical (Canada) ULC

Pursuer

Aircraft Medical Limited

Defender

Procedural Posture

Patent Infringement and Counterclaim for Revocation / Post Trial, Motions for Expenses

Legal Issues

  1. 1 Entitlement to expenses of the principal action and counterclaim
  2. 2 Certification of skilled witnesses
  3. 3 Award of additional fee under Rule of Court 42.14(3)

Ratio Decidendi

The counterclaim for revocation was a consequence of the infringement action and would not have been brought otherwise. Although the defenders did not succeed in the counterclaim, their challenge was justified given the pursuers' broad interpretation of the patent and the high damages claimed. Justice required awarding the defenders a significant proportion (75%) of their expenses for the counterclaim, as well as full expenses for the principal action and amendment motion. Certification of skilled witnesses and an additional fee (excluding factors (d) and (g)) were appropriate for the defenders.

Court Disposition

Pursuers' motions refused; defenders awarded expenses and additional fee as specified.

Orders

  • Defenders awarded expenses of the principal action.
  • Defenders awarded 75% of their expenses in relation to the counterclaim.