Yesterday, the Court of Appeal in London, England ordered revocation of the UK designation of the Fameccanica.Data SpA patent EP 1 355 604, affirming the earlier judgment of the High Court. The patent relates to a diaper including side panels constructed from stretchable trilaminate materials made breathable by the use of ultrasonic bonding and to a method of making that diaper.
In response to the claim by Curt G. Joa, Inc. to invalidate the Patent, Fameccanica had applied to amend it and acknowledged that the patent should be revoked if the application failed. The Court of Appeal agreed with the High Court that the amendments had no basis in the patent or the application it derived from and dismissed the appeal.
Between the issuance of the High Court judgment and the appeal, Fameccanica amended the patent and its European equivalents using a procedure at the European Patent Office (“EPO”). The amendments sought in the EPO were, however, not in the same terms as those sought before the High Court. The Court of Appeal noted that they “omitted the key amendment which Fameccanica needed to confer validity of the patent’s main claims”.
The Court decided that this “validating amendment” to the European patent was not a permissible one because it disclosed technical details which were not in the original application. Joa’s original case that the patent was invalid was ultimately successful.