• COMMERCIAL

England and Wales High Court (Commercial Court) Decisions

Toprise Fashions Ltd v Nik Nak Clothing Co Ltd & Ors

In this application the claimant, Toprise Fashions Ltd, applies for summary judgment on its claim for US$765,385.32 or, alternatively, pursuant respectively to CPR 25.7 and 24.6, for an interim payment to it or into court as a condition for leave to the defendants to defend.

Held that there are great doubts about the defendants' case on late delivery. There is no indication in any of the documents that the whole order covered by invoice TR-0104/07 was to be delivered by 15 January 2007. The purchase orders give a shipping date of "20/12/2006 by sea". The invoice itself states "ETA ROTTERDAM: FEB 05/07" and the bill of exchange issued by Nik Nak in respect of this invoice is not dated until 27 and 31 January 2007. The position is similar on the remaining invoices. I have, however, concluded that I should refuse the application in respect of these invoices because of the defence that the goods were delivered in mixed parcels in breach of an implied term. I have explained why I do not consider that the statement "UNASSORTED CARTON ARE NOT ALLOWED" is, in the context of this contract, inconsistent with an implied term as to types of goods as opposed to colours and sizes. In respect of these invoices there is evidence in the form of a letter from Wiener International to Nik Nak that Wiener had "found many different garments mixed in the boxes, which were not ordered". This letter also states that Weiner is passing a charge of €250,000 to Nik Nak. That sum was stated to represent penalties Wiener received from its customers for the incorrect packing of garments and goods Nik Nak sent them. Mr Ahmed's evidence is that Nik Nak passed this letter to the claimant under cover of a letter dated 5 October 2007 which also addressed other complaints which are not relevant to this application or these proceedings. 

• INTELLECTUAL PROPERTY RIGHTS

United States Court of Appeals for the Federal Circuit

University of Pittsburgh, v Varian Medical Systems , INC

In 1994, scientists at Pitt and Carnegie Mellon University ("Carnegie Mellon") agreed to collaborate to develop an improved apparatus for administering radiation therapy to lung cancer patients. Pitt then filed two patent applications covering those inventions, which was issued as U.S. Patent Nos. 5,727,554 ("the '554 patent") and 5,784,431 ("the '431 patent"). Pitt was the named assignee on those patents. Pitt sued Varian for infringement of the '554 and '431 patents. Varian moved for summary judgment based on its assertion that Pitt lacks standing to bring the action. the district court referred the motion to a special master. The special master recommended that the district court grant Varian's motion for summary judgment without prejudice to Pitt filing an amended complaint with Carnegie Mellon added as a plaintiff. The district court agreed with Varian, dismissing the action with prejudice on the grounds that Carnegie Mellon should have been joined when the action was commenced and that joinder at that point in the litigation would be unfair to Varian .Pitt appealed to this court. Pitt argued that the district court erred in dismissing the action because Carnegie Mellon is not a co-owner of the patents and thus not a necessary party to the action.

The Court held that if a co-owner of a patent wishes to sue for infringement, he must join the other co-owners in the action in order to avoid a dismissal for lack of standing. It further held that since the district court's dismissal of Pitt's infringement action with prejudice was an abuse of discretion under all rationales proffered by Varian, they vacated the dismissal and remanded the case with instructions to designate the dismissal as without prejudice to Pitt's ability to establish standing through the joinder of Carnegie Mellon or the assignment of whatever rights Carnegie Mellon may have in the patents in suit.

• COMPETITION 

United States Court of appeals for the Ninth Circuit

Coalition For ICANN Transparency,Inc v Verisign, Inc.

Plaintiff Coalition for ICANN Transparency ("CFIT") is an organization composed of participants in the Internet domain name system ("DNS"), including website owners. CFIT filed its complaint in 2005 in the Northern District against defendant Veri-Sign, the corporation that acts as the sole operator of the ".com" and ".net" domain name registries. CFIT's complaint endeavored to state claims against Veri-Sign under Section 1 of the Sherman Act and under California's counterpart, the Cartwright Act, for conspiracy in restraint of trade in connection with the terms of the .com and .net contracts' pricing and renewal provisions. 

In essence, CFIT sought to show that the prices were artificially high and that the renewal provisions wrongfully restrained competition for successor contracts. The complaint also endeavored to state claims under Section 2 of the Sherman Act, alleging that VeriSign's conduct in obtaining the anti-competitive provisions constituted monopolization or attempted monopolization of the .com and .net registration markets. The district court,dismissed the action with prejudice for failure to state claims under state or federal law in connection with either the .com or the .net contract.The CIFT appealed to the said order.

This Court held that CFIT has adequately stated claims under Sections 1 and 2 with regard to VeriSign's activities in the .com registration market, but they cannot reach the same conclusion for the allegations about the .net market. This court reversed the district court's grant of VeriSign's motion to dismiss CFIT's complaint for failure to state a claim, and remanded back the case to the district court for further proceedings consistent with this opinion.