Sunday, 29 September 2019

Transfers from IPEC to the Patents Court

Just a glance at the title will tell you that Kwikbolt Ltd v Airbus Operations Ltd [2019] EWHC 2450 (IPEC) (31 July 2019) (not yet on Bailii, only reported by PLC, whose brief report I gratefully acnknowledge, so there is a great deal more to know about this) must be a David and Goliath contest. No matter how large the claimant might be, the defendant is pretty sure to be much bigger. On the face of it, even without considering the nature of the dispute, it is likely to be exactly the sort of claim that IPEC (and the Patents County Court before it) was designed for.

Nor will it come as a surprise that the defendant should have applied to transfer the case to to the Patents Court. Litigation is driven almost entirely by cost considerations, and if you can make your opponent worried that they will run out of money in the Patents Court instead of enjoying the cost caps that apply in the Intellectual Property Enterprise Court it would be unrealistic to expect any litigator, seeking to do their best for their client, not to try to transfer it.

The question for the court hearing such an application is whether the case is complex enough to justify transfer. Does it need days of court time with loads of expert witnesses - the very opposite of the speedy operation of IPEC? HHJ Hacon thought not. With proper management, the case could be heard in two or three days.

Obviously, the defendant was much better able to afford the expense of the Patents Court than was the claimant - which was exactly why David has chosen to sue Goliath in IPEC to start with. In IPEC you accept that your damages are going to be capped at £250,000 if you win (and costs at £50,000). But that's only part of the story: an injunction might be worth a lot more to David, and cost Goliath much more dearly, so the financial cap gives a slightly misleading impression. Anyway, the damages cap is not intended to keep high-value claims out of IPEC altogether, it just means that the full value might not be realised in damages.

An injunction would, of course, be damaging to Goliath, but that did not mean that the case had to go to the Patents Court. If that court granted the injunction, it would be just as damaging. The only reason for transferring the case because of the injunction issue would be if there were a realistic risk that Goliath would be unable fully to argue against it in IPEC. The idea of making an application to a judge which basically says "we don't think your court can hear this case properly" strikes me as fundamentally unattractive, and HHJ Hacon certainly took the view that IPEC was perfectly able to deal with it so no transfer was going to happen.

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