The following IP practice note provides comprehensive and up to date legal information covering:
This key issues Practice Note aims to provide a checklist of practical matters to consider before starting patent infringement litigation in the English courts.
Have you considered alternative dispute resolution (ADR), whether by mediation, arbitration or expert determination? The courts are placing greater emphasis on asking the parties whether they have looked at this, so it needs to be considered and ideally documentation that records the decision on whether to use ADR to resolve your dispute should be generated. The court also has the power to stay a case while the parties attempt ADR, if the court thinks it appropriate.
If you consider mediation, there are a number of highly regarded individuals and organisations that can assist in mediation. They vary quite widely in price range and specialisation. See Practice Note: IP and mediation for more details on how to approach mediation
Make sure the patent has been maintained up to date. Check the register of patents and ensure its renewal fees are paid to date and that the patent belongs to the correct person
If a licensee is going to take action against the infringer, ideally an exclusive licensee should be entered on the register of patents (otherwise there are limits on costs recoverability even if it wins, if the licence was not registered in
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When restructuring is considered rather than formal insolvency proceedings (see Practice Note: Benefits of restructuring over formal proceedings) the company may want to ensure that relevant creditors quickly enter a standstill agreement to gain some breathing space to consider a restructuring
When is quantum meruit and quantum valebat relevant?Claims in quantum meruit (value of services) and quantum valebat (value of goods) arise in diverse situations ranging from where contractual terms are silent on issues of payment to where there is no contract at all (Serck v Drake & Scull).General
An ad hoc arbitration is any arbitration in which the parties have not selected an institution to administer the arbitration. This offers parties flexibility as to the conduct of the arbitration, but less external support for the process. It can be quicker than institutional arbitration but not if
What is QOCS?Qualified one-way costs shifting (QOCS) was introduced on 1 April 2013 as part of the Jackson costs reforms following the removal of a claimant’s right to recover additional liabilities from the defendant, ie success fees and after the event (ATE) insurance premiums. The relevant CPR
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