The Patents Court continues to streamline its procedures

Procedural improvements - quicker, easier, again

For some years the Patents court has been streamlining and speeding up its procedure under the twin pressures of the Patents County Court (which has had little to do in 1997) and the general reforms of Civil Procedure proposed by Lord Woolf. During 1997 the Patents Court has continued with its progress and is one of the most, if not the most, progressive Court in England. In November it issued a Consolidated Practice Direction pulling together a number of earlier directions, the last made in October 1997.

The highlights are:-

• The Patents Judges are able and willing to sit out of London in any intellectual property case.
• The Patent's Court will now sit in September, the month being reserved for trials and applications, including pre-reading, of 5 days or less.
• The Practice of sitting at 10.00am on most days of the week to deal with short applications will continue. In addition there will be a 2 hour slot, 9.00am to 11.00am, on Tuesday mornings so as to speed up the hearing and disposition of slightly more lengthy applications. Parties and their representatives will be expected to continue to assist the efficiency of the Court in providing by not later than 4.00pm on the preceding working day all necessary documents, skeleton arguments and drafts of any Order which the Court will be invited to make. It is important for the Court to be provided with accurate time estimates so that, where possible, more than one application can be listed for hearing before 10.30am. To keep to this guillotines are likely to be imposed on oral submissions.
• Telephone summonses are available for matters lasting less than 90 minutes.
• Experiments done in other jurisdictions and experiments not done as part of normal research can be relied upon to prove any point. An expert's report must, however, state that he knows of no experiment inconsistent with his report.
• The Patents Court is able and willing to hear actions on affidavit evidence. Refusal to agree to a simplified trial can result in an adverse order on costs.
• Documents must be provided for pre-reading by the judge, and in substantial matters documents must also be supplied on disc including the patent, the witness statements and the experts reports.
• Parties must provide the judge with a non-contentious guide, preferably agreed, and all the documents to be used at trial at least four days before trial. A skeleton argument should be lodged at least two days before trial.
• The Patents Court is willing to make immediate assessments of costs and has done so, avoiding the need for taxation and saving much time.

Sensible decisions on the rules of discovery

Under the rules of discovery in patent actions in the UK (Order 104 Rules 11(1) and (2)) no discovery is required of documents relating to a party's product or process provided that the party gives full particulars of that product or process under Rule 11(2)(a). The question arose as to whether those particulars attracted the benefit of the implied undertaking given to discovery documents, that they may not be used save for the purposes of the litigation in which the discovery is given.

The Court held that it would be ludicrous if those particulars, which were provided to avoid the expense to the parties of going through the full discovery process, did not attract the benefit of the undertaking; because it would force parties to refuse to adopt the simplified procedure to give particulars and make them give full discovery in order to take the benefit of that undertaking. The Court, sensibly, held that the particulars attracted the benefit of the undertaking.