Same-day suits in different courts: some answers

Having posted some interesting questions yesterday about the commencement in the Patents County Court (PCC) and the Patents Court (PC) on the same day of proceedings brought between the same parties, PatLit has received some interesting suggestions (including one posted comment) as to how the smaller party, having opted for the PCC, can maximise his chances of keeping the litigation there. One reader intersperses his answers between the questions:

1. Is there any Patents County Court or Patents Court Rule which specifically provides for a situation such as this? No. The intention is that the Act will be amended so that one set of proceedings can be brought in either the PC (or possibly the PCC) for simultaneous transfer applications). 

2. Are all proceedings which are commenced on the same day regarded as being commenced simultaneously, or would the fact that the Patents County Court proceedings were commenced first be significant? I have discussed this with others. There is a principle that parts of a day are not divided legally. however, I think if one party knows that the other has issued proceedings when it issues proceedings, then the Court is likely to be less sympathetic. 

3. Would it make any difference if the defendant had instituted proceedings for a declaration of non-infringement and/or revocation before the patent owner commenced his proceedings? It seems to me that the court first seised is likely to have a slightly greater pull than the other one. I think that when the act is amended this will likely become irrelevant. At present the principle is that if all things are equal then don't move the case. The court will never find that all things are equal, but that is not necessarily much help to a litigant considering what should happen. 

4. Would it make any difference if the defendant had knowledge of the proceedings commenced by the patent owner in the Patents County Court when commencing proceedings in the Patents Court? See above. 

5. What would be the patent owner's best and/or most economic strategy for seeking to keep all proceedings before the Patents County Court? Invite the other party to agree to a transfer and have a consent order made. If the other party will not agree then one of your correspondents (to the PCC page talking about transfer) has suggested that a written application can be made. The suggestion was apparently from counsel and worked. If this does not work then an application to the Court will be required. How easy this is depends strongly on how good is the case for the proceedings being in the PCC".

Another correspondent writes:

"Both courts can make directions of their own motion so, for someone in this position, it seems to me that the best thing might be to write to Judge Colin Birss (PCC) and David Kitchin (as the judge in charge of the Patents Court list) informing them of the parallel proceedings and asking whether either court is minded to make any transfer orders of its own volition, in particular if the courts consider it appropriate that arguments for transfer should take place in the PCC. 

There is going to be an argument here at some point about consolidating proceedings and which court should hear the case. David has power to order transfer of the case from the PCC to the PC, but Colin does not have power to order transfer from the PC to the PCC. David might take the view that Colin can make the decision whether he will hear the case and order transfer from the PC expressly on the basis of liberty to apply to the PCC judge to transfer the case back together with the case already in the PCC. That will enable Colin to make a decision after due consideration of both cases if he believes it better that both cases are heard in the PC. Alternatively David will have to make the decision for both cases".

Thanks so much!