If an IP action, whether a patent infringement claim or indeed anything else, is started in one court, what is the proper avenue through which it might be transferred to another? This issue was examined in some detail in DKH Retail Ltd v Republic (Retail) Ltd [2012] EWHC 877 (Ch). In this case Judge Colin Birss QC (Patents County Court, England and Wales) gave a very useful judgment on an application to transfer an unregistered design infringement action from the (expensive) High Court to the (cheaper, less formal) Patents County Court. The application came initially before a High Court Master -- a type of judge who is concerned primarily with procedural matters such as applications, motions and case management. The Master declined to hear the application on the ground that he did not have jurisdiction and that the application should be heard in the Patents County Court.
The application was then made to Judge Birss QC, who confirms that what, up to now, has been considered to be the correct practice, which is that it is the Master or Judge in the transferring court who must hear and decides the application, is correct. The judge also summarised the basis on which an intellectual property dispute may be referred from a non-specialist County Court to the Patents County Court.
Fortunately there was no need to reapply to the transferring court, since the parties agreed to the transfer to the Patents County Court.
PatLit thanks Brian Whitehead (Kempner & Partners LLP) for prompting this blogger into action.
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