I would add only that it is clear that the argument we have heard on this appeal has been far more extensive than that addressed to the Judge, who was faced at trial with a large number of other points, all of which had to be dealt with under the stringent time constraints of what was then the Patents County Court.
This comes from paragraph 41 of Lord Justices Floyd's judgement on the appeal in AP Racing v Alcon in which they reversed a Patents County Court decision by HHJ Birss QC (as he then was) on the delicate subject of added subject matter in a patent.
Our New Judge in the Intellectual Property Enterprise Court, HHJ Hacon can be found saying on the 3 February
Generally in this court, leaving some of the issues to be heard at a later date is not likely to be sanctioned. However, exceptions are possible and in the present case by the time the trial came before me there was a serious risk that it would overrun if all issues, including the contingent ones, were heard then and there. I therefore approved the approach agreed by the parties.
This comes from paragraph 14 in Elsworth Ethanol v Ensus and a lot of other parties who didn't take part
The Intellectual Property Enterprise Court has trials that are limited to 2 days and frequently shorter intervals. This is supposed to keep the costs down but it's interesting that the court fees seem to be the same. Having watched Mr Justice Birss presiding over a trial in the Patents Court recently, I was particularly struck by how generous he was in allowing the advocates the time they wanted to present their arguments.
Generally the costs factor is decisive in the decision to choose IPEC. I don't mean the costs the client will pay, but the risk of having to pay the other sides charged at some uncontrollable rate. Even so it is still necessary to consider whether the time factor could work an injustice. Always good to deploy only your best argument but with invalidity actions, for example, there may be too many ways to go. Is a point shortly made always the best? Most patent agents know you need more time to write a short letter than a long rambling one. If things have to be concise maybe your advocate needs to be better in the IPEC than in the High Court. Nevertheless if living by the clock is the price we pay for justice, then so be it.