Friday, 8 October 2010

The costs of patent litigation

I haven't had a lot of time for blogging recently, for several reasons. One is that I have spent the day being a corporate finance lawyer. Another is that the Oxford IP seminars (advertised elsewhere on this page) have taken some of my time. At the first one this week, Jane alluded to a famous case on the costs of patent litigation, and I think it will be a service - a small one, but a service nonetheless - to humankind if I post the relevant paragraphs here for all to see.The case was Ungar v Sugg (1892) 9 RPC 113 at 116-117 and the judge Lord Esher MR.
"Well, then," his Lordship said (not words you see much in the law reports these days), "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.”

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