tag:blogger.com,1999:blog-5574479.post921768258284698168..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: To stay or not to stay, that is the questionVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-90330661191258443352013-08-21T09:09:16.911+01:002013-08-21T09:09:16.911+01:00A couple of humble thoughts:
- As to the options ...A couple of humble thoughts:<br /><br />- As to the options posited, is there a more subtle alternative, namely putting the respective party at risk as to costs if it proceeds while an opposition is pending? There is precedent for this: in certain circumstances a party may elect to proceed with a damages inquiry following a first instance decision which is subject to appeal on the basis that it is at risk as to costs if the decision is overturned on appeal.<br /><br />- As to bifurcation of infringement and validity (per the post 20.08.13 at 17:42), this would seem undesirable. Neither the UK court or EPO considers itself bound by the construction adopted by the other. This means that there would be a chance of inconsistent decisions on infringement and validity, an unsatisfactory state of affairs.<br /><br />- As to interim injunctions (per the post 21.08.13 at 08:36) pharmaceutical cases represent the exception rather than the rule. Although the point raised as it applies to them is a valid one. It would seem that this is all up for debate before the courts.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-40563412478053635442013-08-21T08:36:36.834+01:002013-08-21T08:36:36.834+01:00As a non-UK lawyer, I am curious about the effect ...As a non-UK lawyer, I am curious about the effect on interim injunctions. My impression is that UK courts seem to grant interim injunctions easily (at least in respect of generic pharmaceutical cases, based on the "clearing the way" decisions), but that the hardship caused is somewhat ameliorated by the relatively quick trial procedures. However, if all trials are stayed pending the outcome of European proceedings, interim injunctions become a far larger barrier to market entry.<br /> Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-30622892645938818132013-08-20T18:10:55.109+01:002013-08-20T18:10:55.109+01:00I think it vanishingly improbable that the courts ...I think it vanishingly improbable that the courts of England and Wales will introduce bifurcation as a result of this judgment of the UK Supreme Court. Your solution is obvious only if it is not unthinkable and I rather think it precisely that.Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78870717592931505732013-08-20T17:42:12.422+01:002013-08-20T17:42:12.422+01:00Darren, you have omitted the most obvious solution...Darren, you have omitted the most obvious solution: stay the subject matter over which there is shared jurisdiction, and do not abdicate responsibility for the subject matter over which the EPO has no jurisdiction. In other words - bifurcate. Germany does it and still seems to be in business. We could too. So if there is an opposition: (a) stay the invalidity action pending its resolution (with a direction that there will be an expedited trial on validity should the EPO uphold the patent and the challenge be maintained); and (b) proceed with infringement on the usual timetable. If the challenger and opponent are the same people (as is often the case), it lies in the challenger's hands to drop the opposition. As for the final injunction: this solution allows the judge to impose an interim injunction and that does seem to be an appropriate discretion to allow the court. Anonymousnoreply@blogger.com