Pat Lit: Who Pays?

The Court of Appeal ruled yesterday on roughly interesting costs aspects of patent litigation inwards SmithKline Beecham plc in addition to others v Apotex Europe Ltd in addition to others [2004] EWCA Civ 1703.

SKB had a patent for paroxetine hydrochloride anhydrate which was substantially gratis of outflow organic solvent. Following patent revocation in addition to infringement litigation, SKB in addition to Apotex sought apportionment of the costs betwixt them inwards honour of the kickoff example in addition to appeal proceedings. In before proceedings the Court of Appeal had upheld Mr Justice Pumfrey's finding that Apotex did non infringe SKB's patent merely it reversed his findings that the patentwas invalid for lack of novelty in addition to inventive step. The patent had itself been substantially amended in addition to claims which SKB relied on until the laid about of the trial disclaimed were afterwards abandoned. It was impossible to disentangle the diverse issues in addition to brand a precise allotment of costs, in addition to thus the parties agreed that an overall determination should endure reached every mo to whether i side should pay the other's costs in addition to that, if i political party did indeed convey to pay the other's costs, a proportion of those costs should endure offset after taking into concern human relationship whatever appropriate factors past times means of reduction. It was likewise agreed that the costs of the kickoff example in addition to appeal proceedings should endure dealt amongst separately.

The Court of Appeal affirmed that the basic provisions of the Civil Procedure Rules applied every mo much to complex patent infringement cases every mo they did to whatever other type of case. That beingness so, an issue-by-issue approach should endure applied, in addition to thus far every mo it was reasonably possible, though fifty-fifty that approach should non endure idea capable of achieving a precise figure for costs. On the facts, Apotex were entitled to xvi per cent of their costs at kickoff example on a measure basis: this reflected the overall jurist of the case, given that they were the commercial winners. SKB were likewise entitled to 25 per cent of their costs of the appeal on a measure basis.

Apotex: entitled, every mo commercial winners, to a contribution to costs

says the terms of intellectual holding litigation is in addition to thus high that appeals to the Court of Appeal on the costs final result are made to await similar a worthwhile proposition. In both this example in addition to inwards Reed v Reed (dealing amongst merchandise marks) Lord Justice Jacob has sought to explicate in addition to clarify the bases on which costs are awarded. However, it is unfair for litigants to convey to finance the terms of develeping costs jurisprudence out of their ain pockets: clearer guidance should endure made available, through legislation or a House of Lords ruling. Merpel says "I idea this was all virtually Cat Lit, non Pat Lit".