Patent litigation in England and Wales is a specialised legal area that plays a crucial role in protecting and enforcing patent rights. With increasing technological advancements and innovation, protecting inventions through patents has become paramount. Patent litigation provides a structured process to resolve disputes and uphold the rights of inventors.

ARC Costs have a network of law firms on hand to assist with your patent litigation case. Moreover, we can assist with the recovery and negotiation of legal costs upon conclusion of these types of disagreements.

Patents

A patent is a legal right granted to inventors that provides them with exclusive rights to make, use, sell, and distribute their invention for a specified period, typically up to 20 years. In exchange, the inventor publicly discloses detailed information about the invention. Patents encourage innovation by protecting inventors from unauthorised use of their work, ensuring they can recoup their investments in research and development.

There are may different types of patents issued across various sectors. Some of the most common types of patents include utility patents and design patents. Patents are also issued in the life sciences sector, such as plant patents.

Fair, Reasonable, and Non-Discriminatory (FRAND) is a licensing framework used in the context of Standard Essential Patents (SEPs). These are patents essential to industry standards, such as those for telecommunications, data compression, or video coding.

Fair: Licensing terms should be balanced and equitable for both the licensor (patent holder) and the licensee (party seeking to use the patent). This means avoiding undue advantage over competitors or exploiting the licensee’s reliance on the standard.

Reasonable: Licensing fees should align with the market value of the patented technology. Fees should be reasonable considering the contribution of the patented technology to the final product.

Non-Discriminatory: Patent holders must offer the same licensing terms to all potential licensees in similar circumstances. This ensures that no party is unfairly excluded or disadvantaged in accessing the standard.

 

Patent protection

The legal framework for patents is primarily based on the Patents Act 1977, which aligns with the European Patent Convention (EPC). It lays down key principles such as:

• Patentable subject matter: An invention must be new, involve an inventive step, and be capable of industrial application. Some exclusions include scientific theories, mathematical methods, and business methods.
• Duration and rights: Patents grant inventors exclusive rights for up to 20 years. This allows the patent holder to exclude others from making, using, selling, or importing the patented invention.
• Infringement: Acts like manufacturing, selling, or importing a patented product or process without permission constitute infringement.

Courts and Jurisdiction

Patent litigation is generally handled by the Chancery Division of the High Court, specifically the Patents Court and the Intellectual Property Enterprise Court (IPEC).

Patents Court:

• Deals with wide ranging complex and high-value patent disputes.
• Judges specialise in IP law and often have technical backgrounds.

IPEC:

• Handles smaller, less complex patent cases with streamlined procedures.
• The financial cap on damages is £500,000. 

Appeals: Decisions can be appealed to the Court of Appeal and subsequently to the Supreme Court on points of law.

Patent Litigation Process

Pre-Litigation Phase:

• Assessment: The claimant assesses whether infringement has occurred by analysing the patent claims and the alleged infringing product/process.
• Warning Letters: Often, cease-and-desist letters are sent to the alleged infringer, seeking to resolve matters out of court.

Filing the Claim:

• If negotiations fail, a claim form is filed with the court. This should detail the patent rights and nature of the infringement.
• The defendant typically responds with a defence, possibly including a counterclaim for invalidity.

Pre-Trial Proceedings:

• Disclosure: Parties must exchange relevant documents, often including technical reports and commercial data.
• Expert Evidence: Expert witnesses provide technical insights to clarify the patent scope and its application.

Patent Trial:

• Both parties present their cases, with witnesses and experts giving oral evidence.
• Judges analyse the evidence, interpret patent claims, and determine whether infringement occurred.

Judgment:

• The court may find infringement and grant remedies like:
• Injunctions: Injunctions and preliminary injunctions prevent further patent infringement.
• Damages: Compensating for financial losses or calculating a reasonable royalty.
• Account of Profits: Disgorging profits gained through infringement.
• Declaration of Validity: Upholding the patent’s validity.
• Alternatively, the court may find the patent invalid, often due to lack of novelty or inventive step, thus dismissing the infringement claim.

Alternative Dispute Resolution (ADR)

Given the challenges of litigation, many parties opt for Alternative Dispute Resolution (ADR):

Mediation:

• A neutral mediator helps parties negotiate a settlement. Mediation is less adversarial and can preserve business relationships.

Arbitration:

• A private tribunal provides a binding decision on the dispute. Arbitration allows for confidentiality and selecting arbitrators with specific technical expertise.

Recent developments

Brexit:

• The UK’s exit from the EU has impacted patent law. For instance, the UK no longer participates in the Unitary Patent System.

Unified Patent Court (UPC):

• The UPC aims to create a single patent jurisdiction across Europe. Despite Brexit, UK-based businesses should monitor developments to anticipate changes.

Standard Essential Patents (SEPs):

• SEPs involve technology standards crucial to industry compliance. Litigation around SEPs often includes licensing terms and FRAND (Fair, Reasonable, and Non-Discriminatory) requirements. 

How can ARC Costs assist?

Obtaining the right legal advice and representation is crucial in patent litigation. Whilst ARC Costs can assist with the legal costs arising from patent infringement, we also maintain a network of specialist solicitors who would be happy to assist in your case.

ARC Costs are highly experienced in advising and assisting with costs issues and disputes in different areas of law. As Costs Draftsman and Costs Lawyers, we can assist in your costs issues.

If a costs award has been made, allowing you to recover costs from your opponent, we can assist with preparing a Bill of Costs on your behalf to ensure maximum recoverability. We can also assist in Costs Negotiations and represent you at detailed assessment proceedings. This can determine the amount of costs you may be able to recover.

If you have been ordered to pay costs to your opponent, we can assist in disputing costs which may be sought and which you may deem to be excessive and unreasonable. We can do this by way of preparation of  Points of Dispute and also through negotiations to ensure you will only pay for costs which are reasonably incurred and not exaggerated.

Should you wish to discuss your costs query with us, please contact us on 01204 397302 or via email at info@arccosts.co.uk. Alternatively, you can complete our online query form and we will contact you to discuss your query further. We can provide expert legal advice on costs in our free, no obligation initial consultation.

We may receive payments from third party solicitors on our panel to whom we may refer your claim. We will never charge you for any referrals made to our panel of third parties.