SDL wrongful threats case: counterfactual history reaps reward

Almost exactly a year ago, PatLit posted this item on SDL Hair Ltd v Next Row Ltd and others; Master Distributor Ltd v SDL Hair Ltd and others [2013] EWPCC 31, a Patents County Court, England and Wales, decision on, among other things, the making of unwarranted threats of to sue for patent infringement.

Now, in  which emanated last month from Mr Recorder Richard Meade QC. With so much going on, it got overlooked at the time -- but it's still worth noting. Now, in SDL Hair Ltd v Next Row Ltd & others [2014] EWHC 2084 (IPEC), an Intellectual Property Enterprise Court ruling of 3 July 2014, in a 98 paragraph judgment Judge Hacon addresses the question of quantum: how much damage was caused by the making of wrongful threats?  In this case, said the judge, the total loss was £40,500, a sum on which the defendant was required to pay a so-far-unspecified sum of interest.

The judge's decision incorporated his reconstruction of what might have been, had the wrongful threats not been made, by setting out what he termed a "counterfactual history" at paragraphs 54 to 72 of his judgment. While this counterfactual history is obviously highly fact-specific, the approach is one which might expect to see transferred to other situations in which ungrounded threats of patent infringement are made , thus guiding the innocent party's decision whether to sue for damages or not.