Stay of proceedings is always an important issue where litigation breaks out between the same parties in different jurisdictions in respect of the same patent -- but it's not so common to find an application for a stay of patent infringement proceedings in the UK pending the outcome of proceedings unrelated to patent infringement abroad. For this reason the extempore decision of Mr Justice Kitchin in Elmotech Ltd and another v Guidance Ltd and another (Patents Court, England and Wales, 13 May 2010) is instructive (this decision was picked up by subscription service Lawtel).In these proceedings Guidance applied to stay an infringement action brought against them by Elmotech in relation to its patent for tracking devices, pending the outcome of related French proceedings. In those French proceedings, Elmotech had challenged the award of a state tender to a consortium, which included the second applicant in these proceedings, to supply personal monitoring equipment in France. Elmotech, as a member of a consortium that had made an unsuccessful bid, claimed that the award of that tender and the subsequent contract signed by the parties should be set aside because of the procedural violations of EU law and French procurement contract rules. Elmotech, opposing the application for the stay, maintained that it was likely to take around four and a half years to resolve the French proceedings and to receive any relief if it was successful. The French proceedings did not involve any allegations of infringement of patent rights or any issue as to the validity of any patent rights.
Kitchin J refused the application for a stay. In his view, in these circumstances it would not be right to deprive Elmotech of the opportunity to establish the validity of its patent in suit; rather, it was appropriate to allow the patent infringement action to proceed.
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