Lever Fabergé Limited v Colgate-Palmolive Company

A court may make a declaration of patent invalidity where the evidence sufficiently establishes the pleaded grounds, even though the patent is due to lapse. The practice of withholding declarations in the absence of full investigation is a practice rule rather than a rule of law. Under the Civil Procedure Rules, verified pleadings and supporting evidence may reduce the force of that reluctance. Any declaration should identify the grounds on which invalidity is established and should not be expressed more broadly than the evidence and pleadings justify.

The claimant sought judgment concerning a patent for methods of wrapping and packaging soap bars. The defendant accepted that the patent would lapse, but objected to the claimant obtaining a declaration that the patent was invalid. The issue was whether the court could grant such a declaration on the pleadings, statements of truth and supporting witness evidence, and, if so, how broadly it should be framed.

1. Declaration granted. The claimant was entitled to judgment and to a declaration that the patent was invalid.
2. The court applied the approach in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541. The reluctance to grant declarations without a full investigation of the facts is a salutary practice, but it is not a rule of law. It should be followed only where the claimant can obtain the fullest justice without a declaration.
3. The reluctance was less compelling under the Civil Procedure Rules because the claim form and grounds of invalidity were supported by statements of truth. The claimant also relied on a witness statement from a European Patent Attorney and Patent Group Manager, together with an instance of prior art supporting the asserted invalidity.
4. The court declined to make the proposed declaration that the patent was invalid in the broadest possible terms. A declaration made without a full judgment should identify the basis on which invalidity is established.
5. The patent was therefore declared invalid on the grounds pleaded in the grounds of invalidity served with the particulars of claim. There was no order as to costs.