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Patent Law UK
deal with patent disputes (which, when all is said and done, form only a tiny fraction of all the cases courts have to deal with). If simplifying the system means allowing only courts with experience and known fairness to deal with patent disputes, it might be good for SMEs in the countries where those courts are established, but there are many countries which would not qualify so an SME might be faced with bringing a claim in a court which was abroad, and which did not speak his language. Simplifying the system means balancing competing considerations – rather than producing a system which improves everything for everyone.
Simplifying the patent system such that there was no real examination at the application stage of whether the party applying for the patent was entitled to the monopoly claimed, and thus reducing the costs of getting the monopoly would be good for the applicant – but examination at the application stage helps ensure that too broad a monopoly is not granted. It cannot be to the benefit of any business, whether small SMEs or large multinational corporations, for there to be unjustifiable monopolies that can be used to restrict their businesses.
James Dyson is aiming for a simple, cheap system that gives cheap, simple protection which is cheap and simple to enforce. Good, sound business principles! But, bearing in mind that there are, for example, different cultures and languages and political considerations when it comes to international harmonisation, we are unlikely ever to achieve that goal – especially if we wish to keep the number of unjustified patent monopolies to a minimum. However that is not to say things are not going to get cheaper and simpler.
For example, for many years there has been a European Patent Office, where instead of making patent applications in each national patent office in Europe, you can make a single application. Once the application has been examined and approved, you are entitled to get a national patent granted for each European country you have designated (and interestingly, the European Patent Office extends beyond the European Union). You still have to get the patents translated - but there are moves to reduce the need for that. There are also moves to get a single patent covering the whole of the EU, and to have a
limited number of courts in the EU dealing with that ‘Community’ patent.
Q
With that in mind, what are the common challenges faced by
your clients when involved in patent litigation?
Most of the clients we act for in patent litigation are multinational companies and most (but not all) of the infringements they have to deal with are happening in several countries. Preventing infringement on a multinational level is expensive. They don’t want to expend management time and money to sue in every country. Accordingly they generally bring proceedings in particular countries, and typically it will be the UK, US and Germany. This brings a number of benefits – for example, in the UK a speedy decision from a highly regarded judge, with the possibility of disclosure of documents and cross examination of independent experts in the field of technology to which the patent relates, and in the US the possibility of recovering large damages because of the size of the market.
finely balanced – since if the outcome is clear it is unlikely that a party would bring or defend the case), the outcome of proceedings in one country usually has an impact on an overall settlement covering many countries.
If our client is a small business, the challenge is cost. But a small UK client now has the Patents County Court if the infringement is occurs in the UK. If our client is a small UK business trading internationally, the first challenge is balancing the countries in which it gets protection against the cost of getting and maintaining that protection. Of course dealing with infringement abroad is an issue – but generally in practice it is the USA which causes most concern because of the high costs. So overall, cost and management time are the real challenges.
Q
What changes would you like to see happen?
• There should be more co-operation between the national patent offices to reduce the costs of applying for patents – and this is happening.
James Dyson is aiming for a simple, cheap system that gives cheap, simple protection which is cheap and simple to enforce.
We have to decide with our clients the countries in which they should bring a legal claim. Although of course you will get different judges deciding finely balanced cases in different ways (and most cases we see are
• Many countries are in trading blocks - such as those in the EU (and even within that, the Benelux countries). Co-operation between the countries in trading blocks might well result in patent applications being dealt with at a central patent office in those blocks (as with the European Patent Office) and maybe even common court systems for patents – although that will be very difficult to achieve because of not only the legal but the procedural differences (for example in some countries disclosure of documents is required, in other countries, patent infringement is not just a civil offence but a criminal one too).
• Cheaper translation and patent application costs.
• Greater harmony both of patent law and the national legal procedures for dealing with patent disputes.
Overall, there are enormous hurdles to vercome, but slow progress is being made – and although there is a very long way to go, things have moved on considerably in the past few years, both within the UK, the EU generally and internationally.
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