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Pre-Action Correspondence: What to do if you get a Stroppy Letter ....... or worse

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Jane Lambert

On Wednesday I stressed the importance of pre-action correspondence and how the drafting of a letter before claim can make all the difference between getting what you want quickly and cheaply through focused negotiation and precipitating an expensive and possibly protracted law suit in Pre-Action Correspondence - Not Just a Box to be ticked or a Hoop to be jumped through2 Aug 2017. Today, I shall tell you what to do if you receive a letter accusing you of infringing a patent or some other intellectual property right.

If you have carried out an IP audit you should have a strategy in place for just such a contingency and you will have an insurance funded legal team ready to advise and represent you.  If you have a case they should be able to see off the challenge with a well-reasoned and documented response. If, however, you are in the wrong they will advise you of that reality and suggest ways of extricating yourself from the dispute as quickly and cost-effectively as poss…
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Pre-Action Correspondence - Not Just a Box to be ticked or a Hoop to be jumped through.

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Jane Lambert

Until the Civil Procedure Rules ("CPR") came into force in 1999 solicitors specializing in intellectual property law heralded litigation with an ultimatum called a letter before action. Written in haughty if not insulting terms and accompanied by a humiliating form of undertakings, they were intended to shock the recipient into submission. They rarely achieved the desired result. As often as not they were simply ignored.  Occasionally, they were answered by a defiant response.  As a result, a lot of actions were launched that could easily have been settled without recourse to litigation.

As I wrote in Dispute Resolutionall that was supposed to change with the introduction of Pre-Action Protocols and the Practice Direction-Pre-Action Conduct and Protocols:

"The objective of the Practice Direction and the Pre-Action Protocols is to enable the parties to identify the issues in dispute and, wherever possible, to resolve them through negotiation or some other fo…
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Copyright: Primary Infringement - Communicating a Work to the Public

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Copyright is defined by s.1 (1) of the Copyright, Designs and Patents Act 1988 ("the CDPA") as  "a property right" which subsists in accordance with Part I of the Act in original artistic, dramatic, literary and musical work, broadcasts, films and sound recordings and typography. A work in which copyright subsists is known as "a copyright work" pursuant to s.1 (2). The owner of a copyright in a copyright work has the exclusive right to do certain acts that are restricted to the copyright owner (see s.2 (1) CDPA). More importantly, the copyright owner has the exclusive right to prevent others from doing those acts which are often referred to as "restricted acts".

There are two categories of restricted acts:
Primary Infringement which I discussed in Copyright: What is meant by "Primary Infringement"on 21 Sept 2008; andSecondary Infringement which I discussed in Copyright: What is meant by "Secondary Infringement"which I also wro…
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Can a business recover compensation if a state fails to protect its intellectual assets? The decision in Eli Lilly & Co. v Canada suggests "maybe".

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Jane Lambert

Case No. UNCT/14/2 Eli Lilly & Co. v Government of Canada, (16 March 2017) ICSID

At 10:00 on 17 Aug 2017 I shall give a talk to the IP Summer School at Cambridge entitled Bilateral Investment Treaties & Exporters' Rights Post-Brexit.  If you want to hear it there is still space on the course.  There are lots of distinguished speakers who will speak on many other interesting topics. There will also be an exhibition, reception and other social events.  You can book your place here.

Why this is topical
The reason I have been asked to speak on the topic is that "securing new trading agreements with other countries" is one of the objectives announced in the Brexit white paper. Unfortunately, many of the countries that we might wish to approach are on the US Trade Representative's watch list or even its priority watch risk (see Office of the United States Trade Representative 2017 Special 301 Report). There are various reasons why countries are on those …
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The Supreme Court's Judgment in Eli Lilly v Actavis UK Ltd and Others: how to understand it and why it is important

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Jane Lambert

Supreme Court (Lords Neuberger, Mance, Clarke, Sumption and Hodge)  Eli Lilly v Actavis UK Ltd and others[2017] UKSC 48 (12 July 2017)

What the Appeal was about
The pharmaceutical company Eli Lilly and Co ("Lilly") has developed a drug called pemetrexed which it markets under the brand name Alimta for the treatment of various types of cancer. Used on its own, pemetrexed has unpleasant side effects that can sometimes be fatal but these can be avoided when it is administered as a compound called pemetrexed disodium in combination with vitamin B12.

The use of pemetrexed disodium in the manufacture of a medicament for use in combination with vitamin B12 (and, optionally, folic acid) for the treatment of cancer is monopolized in the United Kingdom, France, Italy, Spain and a number of other European countries by European patent number No 1 313 508. There are also corresponding patents for the same invention in many other countries around the world.

This medicine is no…
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