UK patent litigation: dawn of a new age?
Legal practitioners in the UK—more specifically, England and Wales—are fortunate to qualify into a system with a long and illustrious history.
In 1215, “Magna Carta” formalised the rule of law in England and soon after industry was being incentivised by the grant of letters patent, with a patent granted to John Kempe and his company in 1331.
Naturally, where there are patents, there is patent litigation. One of the earliest recorded patent cases in England is from 1602: Darcy v Allin, which centred on a patent for the production of playing cards, said to be infringed by Thomas Allin, a member of the Haberdashers Company, by the sale of half a gross of cards without permission, causing damage of £200 ($260).
More than 400 years later, with the UK’s departure from the EU underway and the UK’s ratification of the Unified Patent Court Agreement now withdrawn, has the patent litigation system come full circle, from playing cards to a reckless gamble on the future?
Put another way, are we about to throw away the benefits accrued from one of the most experienced, sophisticated and well-developed jurisdictions in the world? Emphatically, the answer to that question is “no”.
Innovative changes to UK courts
In recent years, English courts have been adopting changes within their framework for handling disputes that make them more suitable to give parties a thorough, well-reasoned and fair outcome, promptly and at a reasonable price.
Disclosure rules have been modified so that documents will be searched and put into evidence only when the utility and cost are likely to be justified. The English High Court has adopted alternative schemes for shorter (and therefore cheaper) or more flexible trials and their timetables.
The Intellectual Property Enterprise Court (IPEC) continues to provide a very streamlined and cost-effective forum for small and medium-sized enterprises and lower value and less complex disputes. Cheaper still, the Intellectual Property Office offers not only revocation actions but opinions on validity and infringement. The range of procedural options has never been greater.
For those important high value cases which fight in the High Court’s Patents Court and the appellate courts above, the English judiciary is creating a reputation across the world for creative and business-friendly decisions.
In the life sciences sector, parties wishing to receive certainty that a commercial product is free from entanglement in patent thickets can obtain an Arrow declaration. In the telecoms sector, disputes on standard essential patents can be adjudicated in order to obtain a fair, reasonable and non-discriminatory ( FRAND) royalty rate applicable across the globe.
Open for business
These types of judgment—both creatures of recent times—are just one indication that not only are the English courts open for business, but they can offer a genuinely compelling package, including forms of relief largely unavailable elsewhere.
The more well-known benefits of the system still stand. Validity issues and infringement are heard together, hence patentees are kept honest on the scope of their claims, costs are contained because only one stream of litigation operates through the court system, and there is no injunction gap (which otherwise may restrain competitors found to infringe before a decision is reached on validity).
Preliminary injunctions (PIs) are readily available in life sciences cases, deterring competitors from launching in the face of strong patents, but always with the balancing of a cross-undertaking in damages, serving to make patentees think twice before seeking a PI on weak patents.
Damages, meanwhile, are assessed liberally, making the system of compensation for infringement one of the most generous in world, outside the US. Like the US, the procedures for handling evidence leave no hiding place for a party with a weak case. Even in a streamlined case, there is a deep level of forensic analysis of the facts, unknown in almost any other jurisdiction in Europe.
