Legal Update

Intellectual Property Law – Unjustified Patent Infringement Threat - Patent Infringement - Injunction - Revocation of Patent

The case of LB Europe Ltd (Trading as DuPont Liquid Packaging Systems) and Another v Smurfit Bag In A Box SA and Another [2008] concerned a defendant that had made unjustified threats of patent infringement proceedings against a claimant in relation to the manufacture and sale of flexible liquid packages containing tap units. The claimant in this case and first defendant companies were both engaged in the manufacture and sale of flexible liquid packages containing tap units. Each unit comprises a tap and plug.

The second defendant sold the tap units separately.

The class of packaging in this case was known as “bag-in-box”. It was usually used in the wine market. The first defendant in this case was the proprietor of European Patent (UK) 432,070 (“the Patent”). The Patent claimed to address the problem of manufacturing a low cost tap that could operate to a suitable level and which could not be removed from the “bag-in-box”.

A dispute subsequently arose between the parties, and the claimant issued proceedings. The claimant was seeking an injunction on the basis of unjustifiable threats of patent infringement, a declaration of non-infringement, and revocation of the patent.

The first defendant counterclaimed on the grounds of patent infringement.

The court decided that the patent was valid and not been infringed. That decision was subsequently upheld on appeal.

When a further enquiry was carried out as to damages in relation to the unjustified threats made by the first defendant, an issue arose relating to the date when the first claimant was able to fulfil orders to supply its device to the second claimant for use in two of the second claimant’s product lines.

It should be noted that the threat of infringement proceedings was presented to the second claimant back in June 2005. The defendants argued that the first claimant's product had not been suitably developed at the date of the initial threats to the stage where it was a commercially viable product.

The court held that on the evidence presented, if the unjustified threats made by the first defendant had not been carried out, the two product lines of the second claimant would have transferred to the first claimant in January and June 2006 respectively.

The remedies in this case were damages. It should be noted that damages awarded for patent threats are the same as standard awards of damages in civil cases. This means that their assessment must take into account the loss that was actually suffered.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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