All change at the Patents County CourtCIPA welcomes all comments and feedback. You can contact CIPA directly here or post a comment at the end of this article.
The new rules have been well flagged in advance. They make a step change in procedure and its consequences for clients. IP advisors need to understand these changes: they open up avenues for clients which have for a long time been closed; and they open up opportunities for patent and trade mark attorneys to use these avenues, especially with procedures closer to those they already work with.
But like all procedures, there are rules, they need to be complied with, and jumping in without learning what they are could lead to rather burned feet.
More detail on these in weeks to come, but first the key elements (and one elements which has not quite made it) for those who have slept through the changes.
The headlines are (i) the written pleadings; (ii) the procedure up to and at trial; (iii) costs you can recover and (iv) damages you can recover:
Written pleadings set out CONCISELY as much of the case as possible
• Full statements of case including all facts and arguments – full but concise. No repetition of some of the mountainous statements under the original pre-Woolf rules. We can expect a pretty firm hand here – and some guidance soon in a revised PCC Guide.
• Statements of case signed with a statement of truth from someone who ACTUALLY knows the facts. It makes for more commitment (and identifies who might need to be cross-examined, should that be permitted).
Procedure up to and including trial is short and sharp, with bells and whistles silenced:
• 6 weeks or 10 weeks are allowed for a defence to be filed (depending on whether the claimant has complied with the required pre-action steps – more on this later) and 2 weeks for a reply, so you need to be on the ball here.
• A case management conference just a few weeks after the last statement of case, where the judge sets out the procedure, but almost certainly with a view to limiting disclosure (only for specifically identified items), cross examination, expert evidence etc. WHEREVER POSSIBLE the trial will go ahead just on the statements of case, and the parties may consent to a decision on the papers.
• Trial will be soon, and should not last more than one or at the most two days.
Costs under control:
• Costs recovery is limited – not necessarily what you spend, but what you can get back from the other side or they from you,. Of course you can’t play the fool. Abusive behaviour will be penalized by abusive costs.
• BE WARNED: everyone talks of a cap of £50,000 for a full case and £25,000 for enquiry into damages. That is a maximum and each stage has its own maximum (eg particulars of claim = £6,125, preparing witness statements = £5,000, preparing experts reports = £7,500 (including what you pay the expert), etc.
Damages you can recover:
• This one hasn’t made it yet. Damages are intended to be limited to £500,000. But Parliament could not run fast enough – so for at least the first six months, the proposed rule to limit damages will not be in effect.
More on the details in due course. For those who cannot wait, they are here, but make sure you read them with the other bits.
Tuesday, 12 October 2010
The PCC Page, no.1: "All change at the Patents County Court"
Starting today, PatLit is delighted to host a regular Tuesday feature on the new regime for litigation before the recently revamped Patents County Court for England and Wales. This feature is an initiative of the Chartered Institute of Patent Attorneys (CIPA), a body which, in conjunction with others, has taken a close and active interest in the direction of patent litigation reform in the UK. It is intended to provide a clear, concise explanation of how the court now works and will also comment on actual cases as they go through the new procedures and reach their resolution. The first article in this new series, written by CIPA President Alasdair Poore, goes like this: