Molnlycke Health Care v BSN Medical Ltd

This is an appeal from a decision of Floyd J refusing to stay an English patent action. The basis of the application before him was that there were prior proceedings in Sweden and that the case fell within Article 27 of the Brussels Regulation. There were other points too, none of which matter for present purposes.

When the matter first came before us it was not entirely clear from the papers whether or not the Swedish court was seised with the very issue which was raised by the English proceedings, namely whether the samples of the BSN products fell within the claims of the Molnlycke patent.

Rather than go through the exercise of trying to construe the various Swedish judgments this court decided to take the bull by the horns and contact the Swedish judge. The Swedish judge responded immediately and helpfully in that spirit of cooperation between European judges which could not have existed even 20 years ago. She has confirmed that as the case stands right now (using her words), the question of whether the samples form the patent claims is not in issue. It may in due course become an issue but if it does it will be at a point in time after this court (the court of England and Wales) is seised with that issue. So it is this court that is first seised.

Mr Watson seeks to rely on Article 28, a matter that was not raised before Floyd J. He suggests that we should adjourn the current appeal to await a decision whether the Swedish court desires to take jurisdiction over the issue of whether the products fall within the claims. That seems to me to be putting the cart before the horse. This court is seised with the issue. There is an infringement, according to Molnlycke, of the British patent. Molnlycke are entitled to proceed to bring that claim before the English court.

Mr Watson suggests there is a possibility of irreconcilable decisions. Well, the Swedish court, so far as I can see, will no longer be entitled to consider the question of whether or not the British patent covers the samples because it is the British court which is first seised. Mr Watson says the Swedish court has already ruled on that question. I am not convinced that is so, particularly since as matters stand the Swedish court does not think it is seised with that very question.

Accordingly there is simply no basis for the application of Article 28. It is conceded that Article 27 does not apply. The English action may proceed. Whether it is sensible for the parties to proceed in two different jurisdictions is a quite different matter. That is a matter for them. If they wish to choose just one of them and have it decided there, they can of course do that. But it is not a matter for the courts to get involved in.