Is the Patents Court suitable for cases about patents?

This may not be quite as daft a question as it sounds. The Patents County Court (PCC) was originally established back in 1990 as a lower cost alternative to the High Court, which by then had become a notoriously expensive venue for Intellectual Property (IP) cases, and patent litigation in particular. The original PCC, which was intended to be used for relatively straightforward patent cases did not really prosper. After consultation, the PCC was effectively relaunched in 2010 under a new set of procedures, and with a new Judge, HHJ Birss.

The "new" PCC was also intended as a lower cost alternative to High Court litigation, aimed at dealing with all types of IP cases(not just those relating to patents, despite retaining the name). However, the features of the new court which immediately made it stand out were its streamlined procedures, its limit on costs recoverable from the other side (up to £50,000 in dealing with liability), and its limit on damages which could be ordered (up to £500,000).

There was quite a bit of comment at the time of the relaunch as to whether these features would make it difficult to shoe-horn a complicated patent infringement case into the PCC procedures and limits. The argument was that it might well be a useful venue for "softer" IP claims, such as passing-off or trade mark infringement, but in patent cases, where experts and experiments are commonplace, and with challenges to validity based on prior art, the thought was that the process would not accommodate the complexity required.

We were not so convinced – patent infringement cases do not always have to be as complicated as the parties make them. Not all experts are really necessary. Prior art cited is not always really pertinent, and there is a tendency at times to throw the kitchen sink at cases which should not really be that difficult to resolve. We thought that, with sensible handling, reasonably straightforward patent cases could be accommodated within the PCC limits without undue difficulty.

However, the early reported cases from the PCC were resolutely of the "soft" IP variety. It was pleasing to see that the PCC was being used by larger multinational companies, as well as the SMEs for which it was primarily intended. However, patent cases were not at the forefront of the early reported decisions. Since then, though, patent decisions have now started to come through, and in 2012 there were 4 reported patent cases which were disposed of at trial. There was no disclosure in any of the cases, generally there was no more than one expert a side, and the trials did not last more than 2 days in any of the cases. Of course, the subject matter of the cases was relatively straightforward (in patent terms), but even so, sensible case management, and the use of the streamlined procedures appear to have produced a satisfactory result in each case, without costs going through the roof.

With its lower costs base than many of the London law firms who are typically asked to run patent cases, and its extensive contentious IP experience, DWF is ideally placed to deal with the sort of patent cases where clients might previously have been put off by astronomical fee quotes. If you would like to discuss whether your IP case is suitable for the PCC, please contact Ed Meikle (direct dial 0191 2339725, of our IP litigation team for a no-obligation chat.