Money Money Money : Court Fees to be Enhanced Again

Are you still reeling from the rise in English civil court fees to £10,000 in March for unquantified damages claims. Flushed with election success, the fees are to be ENHANCED again. For full details you can see the consultation on the Justice site here

"Bundesarchiv B 145 Bild-F080597-0002, Bundesverfassungsgericht, Richterin Karin Graßhof" by Bundesarchiv, B 145 Bild-F080597-0002 / Reineke, Engelbert / CC-BY-SA. Licensed under CC BY-SA 3.0 de via Wikimedia Commons.

The fees for the Unified Patent Court have also been consulted on here . Responses on that consultation are due to be sent to the secretariat by 31 July you are running out of time if you want to comment. Details of how to comment are here . Since the UPC Has to cover the costs of setting up an entirely new pan-European court, it wasn't surprising to find that they wanted to set pretty high fees. We are expecting a quality and responsive service. We are expecting to be able to see documents and to be able to monitor cases online in a 21st-century way unlike our national court systems. All this is expensive. It may be so expensive that modest businesses with modest disputes cannot even begin to think about using it. This is something of a shame as the Intellectual Property Enterprise Court in the United Kingdom has shown that there are modest patent disputes that need access to justice. Many more are I understand litigated in Germany. Since it will clearly take some time for big Pharma to get comfortable with the UPC, it seemed to me that it would have been quite smart for them to take on some of these more modest cases to get the system moving efficiently. I'm suggesting that €11,000 is too much for a modest business on day 1 to start their claim - perhaps not a great deal too much.
However a €20,000 fee for a counterclaim for revocation is really unfair. It means any modestly sized defendant is denied what is usually their best defence. I went away from that consultation reconciled to the fact that I wouldn't be seeing any UPC work at all in my lifetime.

Now we come to the enhanced fees that are likely to be applicable in the Intellectual Property Enterprise Court.  On this occasion, the proposal is to lift the maximum fee from £10,000-£20,000. If there are any Russian oligarchs left wishing to litigate in London, then it's all well and good that they should pay. What I would like to see is a proper fee established for unquantified damages claims. Most intellectual property actions cannot be valued readily on day one. We need to recognise that in the fee structure and provide for an initial fee and a damages dependent court fee that is paid at the end of the day.

It would also be nice if the appropriate "other remedies" fee applicable in IPEC could be definitively set. At present whether you are charged the High Court rate or the County Court rate is purely at the whim of the counter attendant. The proposal is that those fees rise to £528 and £308 respectively. In my opinion that is actually a tad too low in IP cases where no other financial remedy is sought (but not too low if you are also paying £20,000 for unquantified damages). Given that in a typical trademark case the costs of pursuing damages are likely to be disproportionately greater than the damages ordered in cases which have been started early, not making a money claim is pragmatic and at present that is something of a bargain.


Application fees are also set to rise. The proposal is that £50 becomes 100 for uncontested applications and £155 becomes £255 if contested. The consultation document says that they do not anticipate that the increases will have any significant impact on demand. This is, of course, looking at civil proceedings across the board. In intellectual property cases, it might be a good idea to decrease the demand for general applications.

Hopefully the CIPA Litigation Committee and the Law Society IP committee  will be looking at preparing a response to draw attention to the IPEC issues.

Call to Arms for UK Patent Litigators

If you are European Patent Attorney and hope to practice in the future before the Unified Patent Court, now

is the time to make sure that your qualifications will allow you to be entered on the list of representatives.

There is currently circulating covertly, a draft proposal for rules on the European Patent Litigation Certificate and other appropriate qualifications. As presently drafted any European Patent Attorney who has an LLM or a law degree will have the right to go on the list. I approve. Sadly my CPE didn't get me a degree, so I need to try and persuade Laura Starrs at the UK IPO and her team to suggest some appropriate changes. If you think you may be in a similar position get in touch with your professional body CIPA where Vicki Salmon is working on their submissions or the IPO directly.

Many Chartered Patent Agents are much miffed that other European countries do not recognise that we are lawyers. We have to accept that that battle was lost when the Court of Justice of the European Union decided only solicitors and barristers were lawyers from the UK and that was some time back when OHIM appeals became significant business. The UK government has not helped in all that time and I don't expect them too now.

Unified Patent Court: let clarity and love remain

I want to practice before the unified patent court. This is the court that will achieve the ambition of a single court to decide patent disputes for a large portion of the European Union. It needs a procedure that is simple and accessible. While patent litigation is probably inappropriate for litigants in person, it should still not require representatives that need to have studied in big law firms for many years before becoming competent. The rules of procedure need to be clear and understandable. They were put out to public consultation recently. It's a sham and a disaster because this is a network of contradictory, messy, detailed rules that sometimes try to adjust the principles set out in the agreement. It seems that the computer system to support the court is to be developed soon. The designers of that will need to understand how the court is supposed to work. They won't.

Perhaps we should bring in the teaching professions at this stage. How would you teach this system to a student. What are the principles:

• How are the issues between the parties set out ?
• Who is in control of the procdure: an efficient court administration or the parties themselves as in the UK?
• Is it all done on paper?
• Where do we file?
• How and when do we exchange documents?
• What are the fees?
• Where is everything published online?

These are the things a student needs to know and the IT people designing the support and workflow system need to know them too. Where do we find them in these rules.

It would be interesting to see what professional service process designers think of this. Maybe I should ask my friends at SNOOK ? It certainly seems to me that leaving the parties in control for 6 months before anybody can reign them in means that we have the same old expensive system where most of the early work is wasted as it is in most EPO oppositions.

Obviously this rant is not helpful and the detailed and wondrous AIPPI paper (sent to members on 11 September and not yet on the AIPPI UK site ) is likely to be more in line with the consultation requirements, dealing as it does in great detail with drafting points on many of the 382 rules and they aren't things like "Don't be Ridiculous - this is being funded by taxpayers who don't even provide legal aid any more to their own citizens" in respect of the section on Legal Aid but Article 71 says the Rules of Procedure must deal with it for natural persons so we must, but we hardly need to repeat the Article in Rule 375 do we?

The legal aid we all need is simple easily navigable rules, so we can eliminate the need for a new profession of UPC procedure rules experts at €400 per hour.

Three Judges Chatting

Last night's excellent seminar hosted by Sir Hugh Laddie of UCL gave a platform for three judges from three jurisdictions to address their concerns about the patent system. The audience was drawn from all sections of the profession, patent attorneys, barristers and solicitors with a good sprinkling of SOLO members amongst the generally swanky city suits. It was a complacent audience and you sensed that it did not care too much when David Kitchin expressed his concerns that the Patents Courts lists were full but only with cases of those spending millions on settling their disputes.
Judge Rader gave us a masterclass in the double-edged compliment but, to be fair, the insulting flattery game had been started by Sir Hugh Laddie. Apparently the one thing the global IP judges have in common is a school boy camaraderie of cheek. Randy's substantive address was about the US approach to the grant of injunctions, which he attributes to English principles of equity. No doubt it is expedient to prevent abuse of the patent system by those with patents that relate to a relatively unimportant contribution. The US has a problem with trolls, but no compulsory licence provisions so the judiciary has had to invent them. There was a certain amount of discussion of trollism but there were many who benefit from the University IP market so there was little agreement on how to define them. The ownership of trivial patents that are infringed in big established and financially successful products or services like EBay or mobile phones seems to be a key feature.
There was some publicity for the Burdon plan to reduce litigation costs and several times it was stated that the Patents County Court had failed. Costs caused everyone lots of problems much to the amusement of Randy. Our (former) European judge, Jan Brinkhof smiled inscrutably knowing that mega-costs are not such a problem in mainland Europe.
The EPO came in for some criticism with one member of the audience complaining that the EPO opposition and appeal procedures were so cheap and accessible that his rich clients did not enjoy the exclusive use of resources as they did in the English Patents Court. David Kitchin did have some sympathy about the slowness of the EPO and said it was less likley today for UK cases to be stayed pending resolution by the EPO
Sadly we got a good understanding of the problem, but no solutions to the accessibility to patent resolutions for players with fewer resources than Nokia and Merck.
We look forward to more provocative seminars from IBIL. Thank you.