Tuesday, 30 June 2009

Streamlined or not, two days is all that's needed

PatLit is immensely grateful to Tim Powell (Powell Gilbert LLP) for information concerning an application for directions made last week before Mr Justice Floyd of the Patents Court for England and Wales. In Mobiqa Ltd v Trinity Mobile Ltd, an infringement/ revocation action involving a system for transmitting barcodes to mobile phones, he limited each side to two and a quarter hours of cross-examination in a trial fixed for two days.

It's refreshing to see that the judiciary are prepared to take an action by the scruff of the neck, as it were, and impose some sort of order and structure in order to keep the proceedings realistic. After reviewing the issues in dispute, the low level of complexity of those issues and the matters on which the parties were agreed he continued:
"7. Whether or not one calls these directions a streamlined procedure or not, it seems to me from what I have been told about this action that this action should be capable of being tried within a two day time frame. It seems to me that the issues which are raised are not technically very difficult and given that the case is to be tried in the High Court, it should not occupy more time than is necessary for it to be fairly disposed of. I start therefore with the objective that this case should be capable of being tried within two days.

8. What then is there left to decide? Mr Cuddigan [for the defendant] is right that his clients are entitled to choose between giving disclosure of documents or providing a product and process description. Standard disclosure is a less compact way of addressing the issues of infringement. Standard disclosure means that the claimant has to read the documents which were not prepared with a patent action in mind and dig out from them such material as he considers is necessary to establish its case on infringement. A product and process description is a purpose built document which is designed to facilitate the trial of the action and to release the burden on defendants who would otherwise have to trawl through documents to be certain that they have disclosed all the documents which they are obliged to do. For my part, I cannot in the present case understand why the defendants have not yet decided which course they are going to take. Nor do I understand what considerations they say are material to their decision. Nevertheless, they are right that they have in the normal course a right to choose between the two courses. The date for compliance with their obligations, whether they produce a PPD or whether they go by standard disclosure, will be the same. For that reason, I am not going to force them to produce a product and process description rather than standard disclosure. I would hope that in a case such as the present, it will prove possible to confine the documentation to a well drawn up and concise PPD.

9. The next issue to consider is whether there should be any restriction of cross examination. I am of the view that in a case such as this it ought to be possible to complete the cross examination of two expert witnesses and any factual evidence within a day. That, it seems to me, is the sort of case which this is and for that reason I propose to make an order ... simply limiting the cross examination on both sides to a total of half a day, which I calculate at two and a quarter hours. That of course will be subject to review by the trial judge, but it does not seem to me that whatever the importance of the case to either side, the nature of this particular dispute justifies more than half a day's cross examination. That will enable the case to be decided within the two day window.

10. Both sides have made submissions about the importance of the case to them and the proportionality of the procedure that should be adopted in order to decide the case. For my part, the overriding consideration is the nature of the dispute and where it stands in the overall complexity of patent applications that come before this court. It seems to me that it is nothing like a three to five day case, as the defendants contend. For my part, I cannot conceive of what could be discussed to cause the case to last an entire working week. Once the court is put in possession of the prior art with properly written skeletons, and the issue on infringement is identified, the parties ought to be able to present their closing submissions in half a day each without the need for any elaborate opening. Accordingly, what I propose to do is to make an order in that form, requiring disclosure or a product and process description by 24th August [the trial being fixed for the first available date after 1 December] and limiting cross examination on both sides to two and a quarter hours, allowing for a trial with an estimated length of two days and prereading of half a day to one day".
PatLit expects to see case management of this nature increase as the next generation of judges, for whom case management is integrated into their experience at the Bar, ascends to the Bench.

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