Today's Patents Court (England and Wales) judgment of Mr Justice Floyd in the supplementary protection dispute of Synthon BV v Merz Pharma GmbH & Co KGaA (briefly noted here on the SPC Blog; judgment, subject to editorial corrections, available here) is a salutary tale for those who like speedy trials. Right: the speed of a trial doesn't just depend on how fast the judge and litigants can run -- it depends on the law too
Said the judge:
The answer here is "the law". Synthon and Merz were arguing over the meaning of Article 2 of the SPC Regulation (Regulation 1768/92). One party's interpretation led to a conclusion that was "bizarre"; the other's interpretation that rendered the provision "otiose". There was nothing for it but to refer questions (on the precise formulation of which the judge has invited the parties to make submissions) to the Court of Justice of the European Communities for a preliminary ruling. This rather slows things down. The life expectancy of a healthy SPC is five years, with the possibility of a six-month paediatric extension in an appropriate case, but the average time taken to refer a case to the Court of Justice for a preliminary ruling and get the answer back is around the two-year mark. The SPC in this case was granted in 2003; Mr Justice Floyd will probably get his answer in early 2011, following which the litigation can slip back into streamlined mode.
The Court of Justice can accelerate the reference process but, as it made plain recently in Cases C-403/08 and 429/08 (the 'Greek football broadcasts to English pubs' cases, Order of 3 December 2008), an accelerated reference is only possible where there is both (i) importance of the main proceedings and (ii) urgency of giving judgment. Neither factor is apparently present in Synthon v Merz. One might speculate as to whether parties should be given the option of an accelerated reference, where they can demonstrate that they have chosen a fast-track dispute resolution mechanism under national law and the trial judge certifies that they have complied with its requirements.
"18. The action has been conducted without written or oral evidence under the streamlined procedure in the Patents Court".He then lists "principal facts which are ... agreed (as opposed to assumed)". All this looks very promising: the parties both wanted to press on; they were going full speed ahead and they were even agreeing facts in advance -- though a minor rap on the knuckles was administered by the judge when he expressed his disappointment that he was given two different English translations of the same Bundespatentgericht decision ("46. I do not think there is much difference between them"). The hearing lasted a single day, with judgment delivered inside a month. What could go wrong?
The answer here is "the law". Synthon and Merz were arguing over the meaning of Article 2 of the SPC Regulation (Regulation 1768/92). One party's interpretation led to a conclusion that was "bizarre"; the other's interpretation that rendered the provision "otiose". There was nothing for it but to refer questions (on the precise formulation of which the judge has invited the parties to make submissions) to the Court of Justice of the European Communities for a preliminary ruling. This rather slows things down. The life expectancy of a healthy SPC is five years, with the possibility of a six-month paediatric extension in an appropriate case, but the average time taken to refer a case to the Court of Justice for a preliminary ruling and get the answer back is around the two-year mark. The SPC in this case was granted in 2003; Mr Justice Floyd will probably get his answer in early 2011, following which the litigation can slip back into streamlined mode.
The Court of Justice can accelerate the reference process but, as it made plain recently in Cases C-403/08 and 429/08 (the 'Greek football broadcasts to English pubs' cases, Order of 3 December 2008), an accelerated reference is only possible where there is both (i) importance of the main proceedings and (ii) urgency of giving judgment. Neither factor is apparently present in Synthon v Merz. One might speculate as to whether parties should be given the option of an accelerated reference, where they can demonstrate that they have chosen a fast-track dispute resolution mechanism under national law and the trial judge certifies that they have complied with its requirements.
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