UK patent litigation and the Burdon Plan

Last month patent litigator Michael Burdon wrote a guest piece on this weblog, "An Experiment to Attract the Attention" (see here). In short, Michael suggests a three-year test-drive for his set of proposals which, he argues, will both streamline patent litigation in England and Wales and reduce its cost.

Right: under the proposed regime: "Look, Mildred -- I've litigated six patent cases this year and I've still got enough money for the bus home ..."

Initial responses from within the profession and industry have been most encouraging, though with some inevitable suggestions for fine-tuning.

The proposals, shorn of their background and explanatory notes, run like this:
"1. The initial formal pleadings would be made in the normal way.

2. A party attacking a patent would be limited to three pieces of prior art or other invalidity allegations.

3. The alleged infringer or applicant for a declaration of non-infringement would prepare a product and process description (PPD) unless the relevant features vould be gleaned from the product itself. That party should testify to the truth of that PPD and, if required by the other side, must offer the responsible person for cross-examination. Ambiguous and deficient PPDs are interpreted contra proferentem if all else fails.

4. There would be no disclosure or experiments.

5. After pleadings four days would be set aside 4-6 months ahead: one day for reading, two for the trial and one day for the judgment.

6. The parties would exchange brief summaries of their cases two months before trial. The Statements and evidence would be given for the judge to read on the day before the trial.

7. The parties would have one day each at trial, with tight time-tabling.

8. The Court would sit from 9.30am to 4.30pm on the first day and to 5.30pm on the second, with a possible 30 minute extension to cover time-wasting, evasive witnesses etc.

9. The maximum costs recovery would be £100k, though the parties would be able to spend more if they wanted.

10. Subject to some exercise of discretion, the judge would award the winning party up to 100% of its actual costs, up to the maximum of £100k".
The IPKat has heard an impeccable rumour that the Burdon Plan is to be discussed today by Britain's specialist IP judges. He very much hopes that they will view these suggestions positively, whether they propose to endorse the experiment or not. Merpel says, the current economic crisis will probably work in the plan's favour, given that people still want to litigate patents but would like their exposure both to the financial and the emotional toll to be (i) more predictable than at present and (ii) a lot cheaper and swifter.

FOOTNOTE: another IP litigator, Chris Ryan, has reminded me that his own not dissimilar proposals for improving the performance of the patent litigation system, published in the October 2008 issue of the CIPA Journal, are summarised on the IP Finance weblog ("Cutting the cost of patent litigation: streamlining and cost-capping") here.
UK patent litigation and the Burdon Plan UK patent litigation and the Burdon Plan Reviewed by Jeremy on Wednesday, November 05, 2008 Rating: 5


  1. Rather than an arbitrary costs cap of £100K, would it not be more logical to limit costs by means of, for example, hourly rates.The guideline summary assessment rates issued by the Supreme Court Costs Office (SCCO) should be applied to trials, together with the decision of the Senior Costs Judge in Musa King v Telegraph Group, where it was held that City of London rates should only be allowed for the most complex cases. You will note that the SCCO guideline rates for City Solicitors (ie. EC2, EC3, EC4) are significantly higher than those for "Central London" (i.e. WC1, WC2 etc).

  2. I'm confused. Is it "test the attraction" or "attract the attention"?

  3. Presumably Michael Burdon had London rates in mind when he suggested the limit. I have never really understood why allowable hourly rates are different in different parts of London and the UK. Who is to say that a solicitor in Carlisle should be paid a lower hourly rate than one in London? In these days of virtual offices, this kind of thing is old hat and should be avoided.


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