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Huawei loses Court of Appeal Patent case involving 3G Communications

Written by Thomas Mould on 27 April 2017

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The Court of Appeal dismissed Huawei's appeal in a case that concerned a patent relating to 3G wireless communications technology incorporated into most smartphones.

Huawei challenged whether some of the claims of the patent lacked the inventive step required for an invention to qualify for patent protection in  the UK. In addition, Huawei raised two separate issues which challenged the novelty of Unwired Planet's patent. All three arguments of Huawei were rejected by the Court of Appeal.

One of the issues Huawei raised concerned whether a disclosure made by Ericsson (the original owners of the patent) regarding the patented technology prior to filing for patent protection constituted 'prior art'.

Under patent law, the disclosure of research or other details of an invention prior to a patent application being filed is considered to count against the award of a patent for that invention. Any previous disclosure to the public before the filing of a patent is termed to be ‘Prior Art’ and will cause a patent application to fail.

In Ericsson's case, it disclosed aspects of its invention hours before filing for patent protection before the US Patent Office. Although the disclosure and patent application were made on the same day in some parts of the world, Huawei argued that in some parts of the world, as a result of time differences, Ericsson had technically disclosed the invention a day earlier than filing for the patent. This, it claimed, constituted prior art that existed before the 'priority date' of the patent.

However, the Court of Appeal rejected the claim and clarified how 'prior publication' in relation to the priority date for a patent should be assessed. That issue was previously ruled on by the High Court.

"A publication is not part of the state of the art unless it was published before the priority date," Lord Justice Floyd said. "The priority date is the 24-hour period of the day on which filing took place, in the time zone of the patent office where it was filed. The publication must occur before that day, on a time basis, by reference to the time zone of the patent office of filing. It follows that allegation of lack of novelty was correctly rejected by the [High Court] judge."

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