The cost of litigating patents is an issue that rarely fades from the IP owner's consciousness for long, and it has been pointed on many occasions that a judicial dispute resolution mechanism that is too expensive for users of the patent system can have the effect of rendering that system functionally useless. In the article below, English IP practitioner Chris Ryan (right) outlines his thoughts on the cost of patent litigation and cost-capping. If you'd like to comment on what he has said, you can email him directly here or post a comment below. Chris writes:
"In the October issue of the CIPA Journal I have suggested that some of the criticism of the cost of IP litigation in the UK courts could be avoided if the Patents County Court adopted procedures that were much simpler than those applied in the High Court. The little-used streamline procedure should become the norm and the suitability of a case for determination by that method should be the determining factor as to which court it should be allocated to. I suggested that the combination of streamlined procedure and a cost capping order (again to be regarded as the norm) could create a distinct regime; one that might result in the justice dispensed by the court being a little less dependable, but that would certainly provide a significantly cheaper alternative to the High Court. I was encouraged to include costs capping in my suggestion by the publication of the new edition of the Patents Court and Patents County Court Guide here, which I noticed mentioned costs-capping as an available case management technique.
Now the Civil Procedure Rule Committee has published proposals here for clarifying uncertainty about the legitimacy and appropriate use of costs capping orders in all types of litigation. They are open for consultation until 24 October. However, the Committee suggests (in proposed amendments to CPR 44.18) that the only criteria to be applied should be ones arising from the nature of the particular case under consideration (interests of justice, financial state of the parties, normal case management procedures ineffective etc), not the nature of the forum in which it is to be determined. It seems to me that the new rules would undermine my proposal because the applicable criteria will have to be (expensively) assessed in each case. I would like to see them supplemented by a rule that says that the other criteria may, in effect, be “trumped” by the fact that the case has been brought in, or transferred to, a special court originally created for the express purpose of providing a low cost alternative to the High Court. I wonder if others agree:
(a) that a distinct, and distinctly cheaper regime in the PCC makes sense; and
(b) that this can be achieve by the universal application of the existing rules on streamlining and costs capping.
And if anyone is with me this far would they like to contribute a suggested form of words for a rule which would have that effect?"