07 March 2015

Ah but what if you can't afford to litigate in this super court?





I always enjoy going to court in the Rolls Building. It is a great improvement on the Royal Courts of Justice in the Strand or even the new Civil Justice Centres in Liverpool and Manchester. But this court is expensive to run which is why HM Government is about to increase the cost of issuing a claim worth over £10,000 to 5% of the value of the claim. As I say in How to enforce your IP claim after court fees sky rocket 7 March 2014 NIPC Inventors' Club, some litigants will be faced with a whopping 622% fee increase.

That falls well within the jurisdiction  of the Intellectual Property Enterprise Court which was set up to make it easier for British SME to enforce their intellectual property rights. However, £10,000 is a daunting expense for many such businesses and it is likely to be one more reason for their not protecting their intellectual assets.

However, there are things that an SME can do and I have set those out in my article:

  1. Limit your damages to £10,000. You can still get your injunction and if you can come before the small claims track of the Intellectual Property Enterprise Court the judge will consider your claim for damages or other pecuniary relief at the same time she determines liability. It is a much simpler, cheaper and less risky process and most of the IP cases that I did when I was in Manchester could now be brought in the small claims track.
  2. Consider making more use of the Intellectual Property Office tribunals who have quite extensive powers in inter partes disputes. They can even hear patent cases if every party agrees though they can't award injunctions.  That has not happened much in the past but maybe it will now.
  3. Consider an opinion from a patent examiner. It will only cost you £200. An authoritative opinion may be all you need to unlock a dispute.#
  4. Use an  established arbitration or other ADR scheme where one exists. The best known are the UDRP and Nominet DRS for generic top level and .uk country code top level domain name disputes.
  5. Insert a dispute resolution provision into your licences or other agreements if you don't want to go to court.
  6. Consider before-the-event insurance and let the insurer worry about the issue fees.
On the horizon and riding to the rescue like the US cavalry is the Unified Patent Court which will have exclusive jurisdiction for unitary patents and European patents (UK) unless the patentee opts out of the scheme during a transitional period. Art 71 of the Unified Patent Court agreement restores legal aid to individual inventors - something that was taken away by the access to justice Act 1999.

If you want to discuss this or my longer article give me a ring on 020 7404 5252 during office hours or message me through my contact form.

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