From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 30 July 2015

Best thing since sliced bread -- or even better? Report praises IPEC litigation option

This Kat's excitement about the possibilities for IP litigation at the bargain basement end of the market was stirred up when, in England and Wales, the Patents County Court ("PCC"), was first reformed, reconfigured within the High Court and then rebranded as the Intellectual Property Enterprise Court ("IPEC"), with its Enterprise Judges and its Small Claims Track. Could the IPEC really be the best thing since sliced bread, he wondered -- apart from sliced toast, that is.  This excitement has been shared by some of the litigants themselves, notably photographers who previously generally found copyright infringement litigation far too expensive to make it worth the effort. an example of this can be enjoyed in a blogpost on the 1709 Blog, "Small claims triumph as aerial photographer routs flagrant infringers", here, posted on 15 April and the most frequently-visited item on that blog in the past three years.

Excitement, however, is not enough, says Merpel: what we need is some evidence that the IPEC is a good place to litigate. Well, Katfriend Luke McDonagh, together with some scholarly friends of his own, has been doing some research. Luke, some readers may have spotted, has a serious interest in IP litigation and drew attention to this in providing the information for a PatLit post, "Patent litigation in England and Wales 2007-2013: is it a predictor for UPC behaviour?" which you can read here.

Luke has just told this Kat about a 53-page UK Intellectual Property Office-commissioned report, Evaluation of the Reforms of the Intellectual Property Enterprise Court 2010-2013, published yesterday and accessible via this link.

In this report, which I co-authored with two economists, Christian Helmers and Yassine Lefouili, our task was to examine the impact of the 2010­-2013 reforms undertaken at the former PCC, now the IPEC. The primary aims of the reforms were to streamline litigation procedures and reduce litigation costs, and thereby increase access to justice for IP litigants, particularly for individual claimants and SMEs who had previously found the PCC an expensive and unwieldy litigation venue. The reforms introduced a number of changes -- staggered over the period 2010-­2013 -- including a cap on recoverable costs and damages, a reduction of the length as well as complexity of court actions, and the reconstitution of the PCC -- a county court -- as the specialist IPEC within the Chancery Division of the High Court.

In our report we assess the reforms both quantitatively and qualitatively. In our quantitative case counts we find that there has been a large increase in the quantity of IP cases filed at the IPEC post-reforms, and via a comparative study of IP cases at the High Court (HC) and Patents Court (PHC) we show that with the exception of patent cases, there has not been a corresponding increase in cases at the higher level.
IPEC has a very positive message for SMEs 
We find quantitative and qualitative evidence that the costs cap and active case management by the IPEC judge have been the most influential reforms with respect to the large increase in cases filed at the IPEC post-reforms. We also note that case filings by SMEs have increased substantially following the reforms, fulfilling one of the key aims of the reforms [Look, everybody, and forget mind all the pompous pontificating  about what's good for SMEs -- here's something SMEs actually need and use]. Importantly, we find that this effect is driven by changes at the extensive (more claimants) and intensive (more cases per claimant) margins of litigation behaviour at the IPEC. Finally, we provide a theoretical model that allows us to gauge the effect of the reforms on those IP disputes that never reach a court. Our theoretical predictions suggest that in addition to encouraging more IPEC case filings, the reforms have had the effect of increasing the quantity of out-of-court settlements as well [this is great news too, for SMEs, anyone locked in legal dispute with them, and for mediation services such as those offered by the IPO itself].
This Kat is thrilled at the import of these findings and hopes that the functional utility of IPEC will continue to flourish.  Merpel hopes so too, and is a little sad when she speaks to friends who have taken professional advice and who have not been told by their chosen professional adviser about the option of suing in the IPEC.

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