Explaining patent litigation I: New Term

In this, the first in a series of six reader-friendly posts on patent litigation in England and Wales, Liz Cohen (partner, Bristows LLP and a previous PatLit guest blogger here) introduces the subject for the benefit of (i) those who have never experienced it before and (ii) those who, having experienced it, wonder what on earth it was all about ...

New Term 

As the holidays end, and everyone returns to work, thoughts inevitably turn to the new court term ahead. Michaelmas Term starts in the High Court of England and Wales on 1 October and with it come those court applications that have been contemplated and prepared over the summer vacation, but not considered suitable, or urgent enough, for vacation business.

For those who are less familiar with the Court system in England and Wales (and quite often for those who are...), making a court application can be a confusing and tricky business. There are always several stages. The first stage tends to be to determine the status of the person making the application (for example are they a party or a non party -- hopefully this is not too difficult to do) and to decide what the application is for. Without careful thought an applicant can be flummoxed by the court asking “What is it you want the court to do?”, to which a frustrated applicant is tempted to answer “Isn’t it obvious?!”. This can ideally be avoided by some initial thoughts as to whether a party is seeking a decision, a remedy or permission to do something.

Once that is decided, it is always a good idea to look at the Rules. Generally the Civil Procedure Rules (CPR) Part 23 is a good place to start, but the trick is to appreciate that other parts of the CPR and Practice Directions can also apply and vary CPR Part 23 for specific applications. The Chancery Court Guide, particularly Chapters 5 and 6 can be useful and, for Patents, CPR 63, the Practice Direction and the Patents Court Guide will need to be consulted. In working out which Rules and Guides to take note of, an applicant will need to first determine at least what type of application you are making. For example, will the application be determined on paper, by telephone or at a hearing, will it be made by consent or is it opposed, ex parte or inter parte, on notice, or without notice?

The next stages of completing the application notice, drafting the order sought, working out the fee and issuing and serving the application follow. Evidence in support of the application will need to be drafted, filed at court and served on all parties. If the application is to be determined at a hearing, bundles, a skeleton argument and statement of costs will need to be prepared ahead of the hearing. Once the hearing has taken place the order will be drawn up, sealed and served.

After all that, another holiday is probably in order.

Next week: "All change for smaller businesses"