In the recent case of Celltrion Inc v Biogen Idec Inc & Ors  EWHC 188 (Pat), Mr Justice Henry Carr heard an application by the Claimants for an Order that patent revocation proceedings are listed for 30 November 2016, 12 months following the commencement of the proceedings. The application was prompted by the Practice Statement: Listing Cases for Trial in the Patents Court, issued by Mr Justice Arnold on 07 December 2015.
The Practice Statement provides that for cases in the pilot Shorter Trials Scheme the Patents Court will endeavour to bring patent cases on for trial, where possible, within 12 months of the claim being issued. The Practice Statement places the onus on litigants to turn their minds to trial dates as soon as possible, and on judges to use their case management powers to ensure patent disputes are listed promptly, ensuring cases that proceed through the Patents Court comply with CPR 1.1; namely, that disputes are dealt with justly and at proportionate cost.
Upon hearing the application, Mr Justice Henry Carr stated the Practice Statement was aimed at ensuring the interests of other court users are balanced through resource allocation. In addition, he stressed that much of the technology protected by patents is valuable to society and therefore there is an important social function in hearing cases promptly. Finally, he stated that, following the Chancery Modernisation Review by Lord Justice Briggs, chapter 13 of the report alluded to the UK Patents Court needing to streamline the resolution of disputes. Indeed, the new focus is on swift litigation and reducing lengthy patent litigation.
Mr Justice Henry Carr ordered trial as close as possible to 30 November 2016 (within 12 months of the commencement of proceedings). His reasons for doing so included:
(a) The Counterclaim for invalidity raised many of the same grounds put forward in opposition proceedings at the EPO;
(b) Having sought a listing within the 12 month window, it was unlikely that the Claimant could insist on wide-ranging disclosure which would otherwise take up a great deal of time;
(c) It was possible for the parties to apply to vacate the trial dates if they proved impractical.
The revocation claim was against two very different groups of patents, with appreciably different priority dates. Mr Justice Henry Carr therefore also decided that to avoid confusion there should be a separate trial for each group as close as possible to each other.
The case highlights the utility of the Practice Statement, as well as shedding light on the underlying motivation behind the Practice Statement itself. Reasons (a) to (c) above identified by Mr Justice Henry Carr show a pragmatic approach to patent litigation.
The Shorter Trials Scheme, and the associated Flexible Trials Scheme, is a two-year pilot scheme running in a number of courts (not just the Patents Court). For cases in the Shorter Trials Scheme, the court service is offering parties an opportunity to queue jump and have cases heard earlier, in exchange for streamlining the case and therefore requiring less court resource. It also brings the Patents Court into line with timescales and procedures expected in the impending Unitary Patent Court.
It is interesting to note that the Chancery Modernisation Review stated that the Patents Court compares unfavourably to how long it takes in Germany to reach a decision on infringement. While this can be correct, and provides a useful incentive for the Patents Court to be more streamlined, it misses the point that in Germany the question of validity is dealt with by a separate court (the Bundespatentgericht) on a separate and slower basis, meaning that the time to an overall conclusion often is longer.
Adopting the Shorter Trials Scheme will enable parties to have both infringement and validity of patents decided in an appreciably shorter time. An added benefit is that Costs Budgeting is not required; this step, introduced with the best intention of controlling costs, often has the undesired effect of just adding another step to the litigation process causing additional cost and delay.
One slight concern is that the UK Patent system is not well suited to rushed litigation. Whilst the maxim that "justice delayed is justice denied" holds true, it is equally true that rushed justice may be justice denied. The validity of the patent is a global matter, requiring information and common general knowledge to be determined based on the state of the art throughout the world. This is an onerous task. However, as Mr Justice Henry Carr identified in this particular case, where much of this work had been carried out by the parties already, there is little to be gained from unnecessarily delaying proceedings.
In conclusion, the Shorter Trials Scheme is a credible attempt at streamlining patent disputes by shortening the time period from issuing the claim to trial. After all, in many instances, justice delayed is justice denied. It is, however, a pilot scheme; unless litigants take up this opportunity to streamline and accelerate resolution of their patent disputes, there is a real risk that it will not be continued after the end of the trial period in October 2017.
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