Friday, 30 October 2009

IP litigation costs

It is trite to say that IP litigation is horribly expensive. In Ungar v Sugg (1892) 9 RPC 113 at 116-117 Lord Esher MR famously said:
Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this [holding up the papers] invariably, one set for each Counsel, one set for each Judge, of course, and by the voluminous shorthand notes: we know ‘Here is a patent case.’
Now, what is the result of all this? Why, that a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief.

Wouldn't it be great - for lawyers whose clients have such difficulty affording IP disputes as much as for the clients themselves - if insurance were available against IP litigation costs? There are providers, but the policies do not come cheap - but a new entrant might be changing that. Alpha Insurance Facilities offer cover that is not prohibitively costly. I remain to be convinced, and it's an area I ant to learn a great deal more about.

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