By P. Kandiah
Patent descriptions and patent claims in the field of drilling wellhead platforms drafted and prosecuted successfully by KASS were held valid by the Federal Court of Malaysia.
Kingtime International Ltd sued Petrofac E&C Sdn Bhd for infringement of its two Malaysian patents. Petrofac denied infringement of the patents and counterclaimed that the patents were invalid on several grounds. One of the grounds was that the patent description did not fully disclose details of the invention and the infringed patent claims were vague and not clear, in particular the phrase “wellhead deck is removably attached to the hull”. The High Court, after a lengthy trial with testimony adduced by technical experts who testified on behalf of Kingtime and Petrofac, respectfully held that the patents were valid and infringed. The High Court held that on a literal interpretation of the claims, the phrase challenged by Petrofac is clear to a person skilled in the art.
Not satisfied with the decision Petrofac appealed to the Court of Appeal which unanimously dismissed the appeal.
Petrofac then filed leave to appeal to the Federal Court. Again, one of the grounds for leave to appeal was that the challenged phrase “wellhead is removably attached to the hull” in the patent claim is vague, unclear and not well-defined.
In its decision handed down on 19th August 2020 the Federal Court unanimously refused to grant leave to appeal thereby affirming the decision of the High Court, landing another victory to KASS for its professionalism in drafting patent descriptions and patent claims which withstood severe attack in the courts.
What is left now is for Kingtime to assess and claim damages from the defendants. This high-profile case shows what is at risk when it comes to drafting patent descriptions and patent claims. If not professionally drafted, the patent, even if granted would have been a mere piece of paper which would be easily invalidated by a determined defendant.
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