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The UPC and Patent Litigation at the High Court and the IPEC

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stacked-booksPublished recently on the UKIPO website is a report examining the number of patent cases at both the UK High Court and the Intellectual Property Enterprise Court in the period 2007-2013.

The High Court and IPEC of course both currently have jurisdictions over matters relating to UK patents granted by the UKIPO and EP patents validated in the UK. The introduction of the Unified Patent Court may impact the number of EP(UK) patents that are handled by these two venues and the UKIPO report attempts to quantify the number of cases that have been filed at the High Court and IPEC. 

The report notes that until publication of the report itself there was very little accurate data on the number of cases filed in any one year.

Data gathering of IPEC patent cases comprised the collection and compilation of physical IPEC court files at the Rolls Building. Due to the fact that record keeping at IPEC is largely paper based it was not possible to locate every file within the system. However, IPEC judgments available on BAILII were also reviewed so that the data set included physical file data and electronic record data. Data collected included number of cases, types of claims/counterclaims, types of litigants and patent types in dispute.

A similar methodology was used to collect data on High Court patent cases. However, whereas IPEC cases are held in a dedicated area High Court patent files are mixed in with the estimated 5000 Chancery Division cases. Data collection for High Court cases was supplemented with data for 2011-2012 from Powell-Gilbert Law firm. HMCTS statistics were reviewed but the report came to the conclusion that this data source was not reliable. Additionally, some 2007 files had been destroyed in a fire in 2008 so it was noted that the numbers for 2007 might need to be treated cautiously. BAILII data was again used to supplement the data collection process and similar data types to the IPEC data was collected.

Litigants in the collected data were divided into 3 categories – companies, individuals and government/universities.

IPEC Data

Over the period 2007-2013 there were 96 cases at the IPEC, 49% of which involved a European patent. 46% of the 96 cases involved an EP and a UK firm and the bulk of these EP+UK firm cases involved a UK SME. The busiest year for cases at the IPEC in the period under review was 2011 with a total of 27 cases. The report notes that there were very few life sciences companies in the IPEC during this period and suggests that complexity, costs and case value may be the reason for the relative lack of life science cases.

High Court data

There were by contrast 445 cases at the High Court during this period with around 84% of these cases involving an EP patent and 61% involving a UK firm. Although only around a quarter of the cases at the High Court involved an EP patent and a UK SME the higher number of cases in the High Court meant that 106 UK SMEs were involved in litigation at the High Court compared to 41 at the IPEC. The report notes that a much larger proportion of life sciences patent cases took place in the High Court and relatively few mechanical cases. The busiest years for cases at the High Court were 2008 (91 cases) and 2011 (88 cases).

Although the UKIPO report was produced with an eye on the new Unified Patent Court it does not provide any particular insights into how cases in the UK might develop. The court fees for the UPC are still a large unknown (pending a consultation this spring).

Mark Richardson 9 April 2015

 


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