Monday, 5 October 2009

Mind the Gap!

PatLit reported last week on a speech by Mr Justice Arnold at the Chartered Institute of Patent Attorneys' Congress on the topic of the cost of patent litigation and the potential reform of the Patents County Court (PCC). As luck would have it, at the very same time, PatLit's Michael Burdon (Olswang LLP) was addressing the same topic in a talk to the UK BioIndustry Association's Annual BioScience Forum.

Michael made the point that, while the proposed reform of the PCC was an admirable measure in catering for the needs of SMEs in relatively low-value cases, there remained a considerable gap between the two alternative court systems (the other being the High Court's more up-market Patents Court). The gap posed a problem for those in the biotechnology industry, who cannot afford the fees and the risk of significant costs awards against them that are part of litigating patents in the Patents Court, but whose dispute would not fall within the relatively modest jurisdictional cap of the reformed PCC.

The IP Advisory Committee of the BIA, of which Michael is a member, has received significant feedback from its members about situations where (i) not only had patent owners been unable to afford the cost of enforcing their own right but also (ii) where companies had reluctantly taken licences in relation to rights which were weak and likely to be revoked under challenge because of the lack of a low-cost forum in which to make such a challenge.

This point is bound to be of interest to the European Commission, whose representatives also spoke at the BIA forum, about the Commission's sector enquiry into pharmaceuticals and the Commission's proposal for a single Community patent and a Unified Patent Litigation System. Access to justice for SMEs and an effective means to challenge patents are key themes of the Commission's work in this area.

Michael paid credit to the efforts made by the current generation of patent judges in applying robust case management and referred to the availability of useful alternatives to litigation such as the opinion service offered by the UK IPO. He also said that the EPO opposition procedure ought to be an effective part of the patent system but that the lengthy delays in having oppositions determined meant that they did not serve their purpose effectively.

Meanwhile we are all twitching with eager anticipation to see whether, if implemented, the reformed PCC, or rather the IPCC as it would be known, will attract much business. Let's hope it is successful and that the cap can be raised to allow it to be used to satisfy, what at least in the biotech industry's expectation, is a significant unmet need. There was much talk at the splendid and lively post-forum drinks party put on by 8 New Square Chambers at the Oxo Tower as to the identity of a possible judge to replace Judge Fysh when he retires in the summer next year. Unfortunately, as several people commented, with a pay scale equivalent to that of a junior associate in a law firm and numerous tales of the "joys" of trying to operate within the County Court structure, there is unlikely to be a long line of interested candidates. Finding someone to take on this crucial role will be critical to the Court's success. Any volunteers?

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