Patent Litigation in England and Wales and the Issue-Based Approach to Costs

Abstract

In England and Wales legal procedures with regard to patents are said to be both lengthy and costly. Nonetheless, at present there is little factual empirical evidence on procedural and costs issues in the UK. This makes it difficult to comprehend the state of patent litigation within the wider framework of civil litigation. The provision of analysis of both the processes undertaken and the costs accrued at the PHC is therefore of crucial importance. With this in mind, this article first explains the procedures for taking a patent case at the PHC and outlines the types of cases which typically occur, such as actions for infringement and challenges to patent validity. Secondly, in order to substantiate our analysis we examine a sample of 18 cases filed during 2000-2008 with regard to costs. We examine the discretionary, issue-based approach, the guidance given at the PHC to costs assessment judgment. and the way the courts deal with interim costs issues. Our study confirms that the costs of patent litigation are high, with the average cost of a full trial at the PHC, encompassing the costs of both sides, falling between £1 million and £6 million. We further explore the reasons for the high costs, including the strong disclosure requirement and the need for scientific experiments and expert testimony. Finally, we note that the perception of costs risks has the potential to influence the types of claims brought to the PHC, the rate of settlement of cases and the volume of cases.

Keywords: patents, law, costs, loser pays, litigation