The Patents County Court – New Procedure

At the end of this week, on Friday 1 October 2010, significant amendments to the procedure in the Patents County Court will come into force. The original aim in creating the Patents County Court, as an alternative forum in the UK to the Patents Court (High Court), was to serve the interests of small- and medium-sized enterprises (SMEs) and these reforms are intended to help achieve this goal by providing a simplified procedure.

The key procedural changes include:

• Costs recoverable from the other side in the Patents County Court will in most cases be capped at £50,000 for liability and at £25,000 for an inquiry as to damages or account of profits. Costs will be awarded according to a scale of costs for each of the procedural stages in the action.
• Statements of case will be more detailed, as the parties will need to set out concisely all the facts and arguments upon which they rely. This will enable the Patents County Court to determine the claim solely on the basis of the parties’ statements of case and oral submissions where possible. If the parties consent, the Patents County Court may determine the claim on the papers.
• The following procedural steps will only be awarded in the Patents County Court in respect of specific and identified issues and only if the court is satisfied that the further material satisfies a cost-benefit test: specific disclosure, a product or process description, experiments, witness statements, experts’ reports, cross examination at trial and written submissions or skeleton arguments.
• The Patents County Court will endeavour to ensure that trial lasts no longer than two days and cross examination at trial will be strictly controlled.

These changes provide the Patents County Court with rules that differentiate it from the Patents Court (High Court) and mean that, for the right case, there will now be available in the UK a procedure similar to that available in many other European countries. It remains to be seen how the courts will deal with the question of which claims are suitable to be heard by the Patents County Court, but both the nature of the party (whether it can afford to litigate only in the Patents County Court) and the nature of the claim (its value and the complexity of the issues) will be relevant factors. In addition to providing a procedure better suited to the needs of SMEs, the Patents County Court may also prove to be an appropriate forum for litigation between larger parties for less complex and less valuable claims.

These amendments implement many of the recommendations of the Intellectual Property Court Users’ Committee’s Final Report on Proposals for Reform of the Patents County Court dated 31 July 2009. A number of other recommendations, most notably a £500,000 cap on damages, have not yet been implemented.