ZTE fails in bid to reopen patent trial post-judgment but before judge seals order

Vringo Infrastructure Inc v ZTE (UK) Ltd [2015] EWHC 214 (Pat) is a 30 January decision of Mr Justice Birss, sitting in the Patents Court, England and Wales.  It's far from being the first time that these two adversaries have clashed in the courts of England and Wales [see eg earlier PatLit post here with links to earlier litigation].

This time round, ZE applied to re-open a trial at which Birss J concluded that Vringo's patent was valid, having found that the relevant prior art documents did not disclose protocol transparency. ZTE then looked for other examples of protocol transparency, finding prior art documents on which it sought to rely. Having done so, it obtained an order suspending the court's sealing of the order arising from the trial pending this application to reopen the trial.

In short, Birss J refused the application to reopen the trial. In his view

* The power to reverse a decision before the order had been drawn up existed, and was not limited to exceptional circumstances: every case depended on its circumstances and the overriding objective was the starting point [ie the court should deal with cases justly and at a proportionate cost].

* Allowing an amendment before a trial began was different from allowing it at the end of the trial to give an apparently unsuccessful defendant a chance to run a new argument, particularly where the amendment was sought after judgment,

* A party could not just wait for a judge's findings and say that he could have called more evidence on that point. If an amendment to the statements of case would not have been permitted before trial, it was unlikely to be permitted afterwards -- and, even if it were permitted, that did not mean that it should be permitted after judgment,

* In the context of patent litigation, the selection of prior art by a party challenging a patent was a matter of his own free choice and it was not open to a challenger simply to re-open the matter on the basis that a judge had not dealt with it.

* The prior art relating to protocol transparency was plainly potentially relevant earlier and could have been found with reasonable diligence. It was a toss-up as to whether that prior art would have had an important influence on the trial's result, and this new evidence was entirely credible.

* Points in favour of granting ZTE's application were that neither party had acted to its detriment in reliance upon the judgment; the patent was to be effective; the case was really only about money rather than injunctive relief; and costs incurred in a retrial would be compensatable

* Points against granting the application included the facts that there was no excuse for ZTE not having used the documents before; it would lead to a trial of at least two days; and the legitimate expectation of finality following the original trial would be thwarted. The strength of ZTE's case was not so clear as to show that the patent was probably invalid, since it would merely involve an arguable piece of prior art. A party had to make careful selections of prior arts and it was incomprehensible that ZTE had overlooked this prior art earlier.