Dupont Nutrition Biosciences ApS v Novozymes A/S

The construction of a judicial order is a single coherent process. The court considers the order’s language in the circumstances in which it was made, including the reasons given for making it and any agreed wording approved by the court. An order permitting use of disclosed documents in proceedings concerning a patent family may extend to related European patents and utility models, and to later proceedings, but its scope remains controlled by the order’s purpose and terms. Here, permission was confined to inter partes proceedings concerning validity or infringement, and excluded ownership proceedings, third-party observations, non-European rights and use by other group companies. Privilege was waived where a document was disclosed for the general purposes of the action and its disclosure was not an obvious mistake.

Danisco brought proceedings seeking revocation of Novozymes’ European patent. Related proceedings were pending before the European Patent Office and in other European jurisdictions. After an adjournment, Mann J ordered that documents disclosed in the English proceedings could be used in proceedings relating to the patent and members of its patent family.

The patent was subsequently revoked by the Technical Board of Appeal, bringing the claim and counterclaim to an end. The court was asked to construe the permission in Mann J’s order, determine whether the Luna memorandum remained privileged after disclosure, and decide whether to restrain Novozymes from objecting to use of the documents abroad.

1. Construction of the order. The court applied the approach in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6. Construction is a single coherent process, taking account of the language of the order, the circumstances known to the court and parties, and the reasons given for making it. Where parties agree wording which differs from wording used at the hearing, the court’s approval of that wording is also relevant.
2. Scope of permission. The expression “EP 1,804,592 and members of that patent family” covered the European patent and related European rights, including utility models and divisional patents. It covered inter partes proceedings in European courts or patent offices concerning validity or infringement, whether pending on 9 March 2012 or begun later. It did not cover proceedings concerning ownership, third-party observations or patent-office prosecution proceedings which were not inter partes. It did not extend to rights outside Europe or to use by other companies in the Danisco group.
3. Privilege. Applying Al-Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780, and distinguishing the limited-purpose disclosure in Oxford Gene Technology v Affymetrix Inc [2001] RPC 18, the Luna memorandum had been disclosed for the general purposes of the action. The general possibility that privilege review might later identify mistakes did not make the disclosure limited-purpose. Nothing in the memorandum made an error obvious to a reasonable solicitor. Privilege was therefore waived.
4. Injunction. An injunction restraining Novozymes from objecting to use of the documents was refused. There was no sufficiently specific threat of an improper objection, and declarations adequately clarified the permitted use.

Declarations were granted on the scope of permission and the Luna memorandum. The injunction was refused.