Shall We CAP Damages in PCC Litigation?

The IPO is conducting a short consultation on the implementation of the limit proposed in the Jackson Review on the financial remedies available in the Patents County Court. Originally the Intellectual Property Court Users Group proposed that this should be £250k but upped that to £500k before their final report in July 2009. This indicates a certain arbitrariness about the figure and the IPO would like some justification.

To put a Cap on the Damages Consultation?

Paul Cole has circulated members of the Patent Agent Litigator's Group encouraging us to argue against the cap. We do not need one. He points out that the IPO has no cap in its patent infringement jurisdiction under section 61(3) of the Patents Act 1977. However that jurisdiction is pretty moribund as both parties need to agree on going to the IPO.  The IPO does not deal in trademark infringement at all.

The new Patents County Court Judge has had his say  in an early case, Alk-Abello v Meridian which he kicked out of his court to the High Court.  He opined:

• Why does value matter? The answer in my judgment is to emphasise what the Patents County Court was set up to achieve. The decisive factor is that the court was set up to ensure that small and medium sized enterprises, and private individuals, were not deterred from innovation by the potential cost of litigation to safeguard their rights. With the new procedures in place I intend to devote my energies to making them work in order to achieve that objective. However this is not the case in which to do it. 

In this case an injunction was in issue. Indeed in my experience of David and Goliath litigation, the Injunction is ALL that matters. Surely the PCC is not just for SMEs battling it out amongst themselves. To me its most important role is in the David and Goliath matters. David cannot usually ask for an interlocutory injunction for fear of a cross-undertaking in damages. If this limit affects that cross-undertaking £500k is still enough to have David cowering. However the PCC can offer speed and simplicity to a final injunction if appropriate with a manageable costs cap.

The IPO have offered an Impact assessment based on "cost savings for business through re-positioning cases previously heard in the High Court into the cheaper County Court (achieved by limiting the value of claims heard in the lower court)". This is not a consequence of the Cap on Damages it is a consequence of the already introduced Cap on Costs, which is BRILLIANT.  Do we need to go this extra step which could come back to haunt us. The Judge has already clarified the cases he wants. Why waste time with a Cap that could be wrong. Forget it. The damages are what the damages are shown to be.

We cannot expect the IPO to go reading blogs so we have to respond to the consultation. Comments would be greatly appreciated.