Thursday, 5 July 2012

Trials and timing: the need to be realistic

This week's ruling by Mr Justice Floyd (Patents Court, England and Wales) in HTC Europe Co Ltd v Apple Inc [2012] EWHC 1789 (Pat) has attracted a good deal of attention (there's an excellent analysis of it by David Brophy here on the IPKat). This post seeks to draw the attention of PatLit readers to just one issue: .  Said Floyd J, towards the end of his epic judgment:
"360. At one point the present trial was estimated at 6-8 days [it eventually required 14 days in court]. This was, or became, a seriously inaccurate estimate on any basis. There were four patents in issue, all of obvious commercial importance to both parties. HTC, for their part, were relying on several documentary prior art citations per patent, as well as attacks based on prior use and the common general knowledge alone. The technology involved was not all entirely straightforward. Apple, for their part, were relying on independent validity of multiple sub-claims. Both parties filed voluminous expert evidence, generally three reports from each of three pairs of independent experts. The parties wished to cross-examine the opposing experts on this extensive material. The parties also estimated that the court could get on top of this material in two days, later collapsed to a day and a half because of a need for an expert to return to the United States. This time estimate was also completely unrealistic. A longer time estimate for reading does not cost the parties anything [not in terms of the trial -- but the real cost is arguably in the marketplace, where the speedier conclusion of invalidity or infringement proceedings can have financial repercussions both for the litigants and for third parties]. In the result the trial had to be interrupted to allow me more time to read and understand this material. This is highly disruptive.

361. The court will always be sympathetic to attempts by parties to resolve patent disputes with strict limits as to the number of citations and claims, the evidence which may be adduced, and the time which is to be taken in court with cross examination and speeches. Very careful consideration needs to be given to match reading time estimates and trial estimates to the way in which the case is in fact being conducted.

362. Finally, this is a case where there should plainly have been a pre-trial review in accordance with the guidance in the Chancery Guide. The guidance in paragraph 3.20 is only mandatory in the case of cases lasting more than 10 days, but applies in other cases where the circumstances warrant it. The parties should have appreciated that the present case would last 10 days or more. Moreover, and in any event, the circumstances of the present case plainly warranted a pre-trial review [this blogger is a great believer in the virtues of rigorous pre-trial review, firm case management and anything which can make the current system more efficient and less expensive without the need for law reform]".

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