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.

Letters of Note: Arkell v. Pressdram

I have previously posted links to material on the Letters of Note website. This one is legendary: the basis for Private Eye's stock response to any accusation that they had defamed someone.

Unified Patent Court: progress - if that's the right word

Reports last week suggested that the UK government had successfully brought the EU patent behemoth to a grinding halt. More careful examination of what happened shows otherwise. There will be a Unitary Patent Central Court, and there will also be two sector-specific courts, one for mechanical engineering and the other for chemistry and "human necessities". I must be missing something, but patent agents used to divide the world into mechanical, chemical and electronic, and the last of that trio seems to be missing.

Munich gets mechanical patents, London gets chemical and that other category, and Paris gets the central division. Maybe I am missing something, but a classic piece of EU horse-trading hardly justifies celebration, does it? The so-called Intellectual Property Office is clearly happy, saying in its highly uninformative press release:

The Prime Minister has today secured a great result for UK business at the European Council on single unitary patent valid in up to 25 European countries and secured London to be the host for the unified patent court. (If one had to say one city was the host, surely Paris would be the candidate? But it's quite wrong to say that there is one host.)
The Prime Minister, David Cameron said:
"A vital part of the Court covering the pharmaceutical and life sciences industries, in which Britain excels, will be coming to London. This brings millions of pounds and hundreds of jobs. (The litigation, or the industries? If the latter, which I imagine is the case, how is this remotely relevant to the situation of the sector court?)
"And I secured the changes to the nature of the patent system that businesses were demanding." (I don't think there is much agreement among businesses about what changes were needed - and it seems abundantly clear that the vastly increased expense of obtaining patent protection and litigating at the EU level is as far from the interests of small businesses as one can possibly get. See that FT article a link to which I posted earlier ...).

The heads of state have suggested the deletion from the Regulation of the provisions dealing with enhanced co-operation, a typical EU-euphemism  (a EUphemism, perhaps?) for a form of co-operation which does not include all Member States, which most people would consider to be a failure of co-operation rather than an enhanced version of it. It is a steamroller that nine or more Member States can drive, to the exclusion of the others. Of course, in the patents field (apparently, according to Wikipedia so this must be correct, divorce law is the other area in which enhanced co-operation is being used) Spain and Italy are the outsiders. The suggestion that enhanced co-operation should not be used here is a welcome development as far as most people in the patents world are concerned - as the PatLit blog observes:

... the constant criticism by the experts in the field (see e.g. Professor Krasser's opinion and Sir Robin Jacob's opinion) has been successful despite of the deplorable lack of transparency (see J. Pagenberg's letter here).

A new week of intellectual property ...

The Financial Times gives us a preview of the Hargreaves Review's report, which is promised for Wednesday, while Rebecca Tushnet's blog draws attention to a paper by Christian Handke on the economic effects of copyright, part of the work of the Copyright Policy Research Forum of the National Research Council (of the USA). The NRC has set up a blog to enable participants who can't do so in person to contribute. And they seem to be making better use of it than the Hargreaves Review did of its blog.

Prof Tushnet's blog also draws attention to a story in the New York Times about the perils of naked licensing - well, presumably naked: Donald Trump has been letting developers use his name, for no small consideration I imagine, and his goodwill has suffered for it.

Crain's Detroit Business website reports (here, free sub required) that IP litigation in Michigan has declined for the third year running, according to some attorneys - the victim, it seems, of a combination of low plaintiff success rates, meagre damages and speedy routes to trial, none of which attract plaintiffs, especially trolls. But that general statement seems to hold true for patents, and the report notes that trade mark litigation is not suffering.