- Formstein—another step closer to a precedent defence for patent infringement? (Facebook v Voxer)
- What are the practical implications of this case?
- What was the background?
- Factual background
- Issues to be decided
- What did the court decide?
- Case details
IP analysis: Facebook brought a revocation action against Voxer’s patent concerning an invention that enabled voice and video conversation to be heard in real time or in delayed time (by sending, for example, voice recordings as messages). Voxer counterclaimed, asserting that Facebook’s Live Broadcast feature infringed the patent. In doing so, it sought to rely on the doctrine of equivalents. The court found in favour of Facebook—the patent was invalid for obviousness. What’s more, Facebook was found not to have infringed the patent, on the basis of equivalents or otherwise. Of particular note was Lord Justice Birss’s consideration of the Formstein defence, put forward by Facebook against the case on equivalents. Although obiter, Birss LJ did consider that, should he have had to decide, he would have confirmed that Formstein was the correct approach. This is a further indication that a Formstein-style defence should apply in the UK, particularly given that Birss LJ is a sitting judge in the Court of Appeal. Written by Alasdhair McDonald, associate, and Rosie Lapper, trainee solicitor at CMS Cameron McKenna Nabarro Olswang LLP.
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