Friday, 3 April 2009

Super-complainants: do they have a role in patent litigation?

The UK's Department for Business, Enterprise and Regulatory Reform (BERR) last month published a 17-page document, Super-complaints: Guidance for bodies seeking designation as super-complainants (here). The document does not contain any express reference to patents or any other intellectual property rights. However, the introduction explains that
"The Enterprise Act 2002. .. gives certain designated consumer bodies the right to make a “super-complaint” where they consider that there are market features (such as the market structure or the conduct of firms operating within it) that may be significantly harming the interests of consumers. The market in question may be regional, national or supranational (where the UK forms part of that market). Individual consumers do not often have access to the kind of information necessary to make a judgement about market failure and so the aim of the procedure is to encourage groups who represent consumers to make relevant super-complaints on their collective behalf. The OFT, or where appropriate the relevant sectoral regulator, will be obliged to respond to a super-complaint within 90 calendar days".
It does not take much imagination to see how super-complainant status can affect patent litigation. At present, a party seeking a compulsory patent licence in the UK under the Patents Act 1977 must effectively play the part of champion of a greater public interest, whether economic or of another nature, in seeking to persuade a tribunal that the private interest in the sanctity of an unused or underused monopoly right should be sacrificed to a greater good.  Unlike a compulsory licence applicant, who may have an expectation of substantial profit if the licence is granted, an application for, say, a patent to be subject to a licence of right, made by a super-complainant representing a vulnerable consumer group (hospital patients, perhaps?) might be more likely to succeed where it is viewed as altruistic.

Readers' opinions on ths guidance for super-complainants are welcomed.

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