Forum shopping: is the England and Wales Patents Court really a non-starter for patentees?

Abstract

Legal context

The multi-jurisdictional nature of many patent disputes makes knowledge of the approach and attitude of the courts in different jurisdictions to the issues of validity and infringement an invaluable asset for the patentee seeking to enforce its rights. Where the patentee has choice over where to litigate it will want to do so in forums known to be more likely to hold a patent valid and infringed than others. For some time, the Courts of England & Wales have been perceived as the best European forum in which to bring litigation as an alleged infringer, with Germany and The Netherlands being perceived as the best European forum in which to bring litigation as a patentee.

Key points

• We have analysed the decisions of the Courts of England & Wales from 1 January 2001 to 1 January 2011 and have noted a swing in the attitude of these courts in favour of the patentee.

• Appellate courts can have a great impact upon the success rates, and in the case of England & Wales this has a marked positive impact upon the patentee's success rates.

• Prospective litigants must carefully examine the methodology behind any success rates before drawing comparisons between different jurisdictions and deciding on multi-jurisdictional litigation strategy.

• It should no longer be the case that patentees elect to avoid litigation in England & Wales.

Practical significance

Prospective litigants should give serious consideration to the use of England & Wales as a first strike forum.