UK Law and Practice Contributed by: Nicola Dagg, Jin Ooi, Ray Cheng and Nevyn Fournel, Kirkland & Ellis
es provide evidence in chief through witness statements, and experts present their evidence through expert reports signed by a statement of truth. Witnesses are called to testify at trial and undergo cross-examination by the oppos- ing party. Unlike some jurisdictions, there is no direct examination in patent litigation proceed- ings in England and Wales; the written evidence serves that purpose. Judgment and Remedies In most patent litigation cases, particularly those involving complex issues, splitting the trials for liability and quantum is common. After the trial, the judge typically reserves judgment for a later date, which may take several months. Subse- quently, the parties attend a final order hearing to determine the form of the final order and address any remaining issues, such as costs. In cases where costs cannot be agreed upon, a detailed assessment hearing is convened to determine the matter of costs. 5.2 Decision-Makers The Decision-Makers in Patent Litigation Proceedings in England and Wales In the context of civil proceedings in England and Wales, the determination of cases relies on the expertise of judges rather than a jury. Not all judges within the Patents Court have techni- cal intellectual property backgrounds; however, a number of them do. Usually, cases involving more complex technical issues (in terms of the patent, the prior art, the infringement issues, and likely evidence) will be heard by a suitably quali- fied Patents Court Judge (Patents Court Guide, paragraph 3). Notwithstanding that, it is perti- nent to note that interim hearings in complex technical patent cases might still be presided over by non-technical Patents Court Judges.
Parties involved in patent litigation proceed- ings do not exert influence over the selection of judges. The assignment typically depends on the availability of the court and judges, tak- ing into consideration any existing conflicts that might impact their impartiality. 5.3 Settling the Case The avenues for parties to resolve proceedings are largely focused on encouraging amicable resolutions through negotiations and alterna- tive dispute resolution (ADR) mechanisms. ADR is discussed further at 9.1 Type of Actions for Intellectual Property . Noteworthy is the court’s power to mandate parties to engage in ADR, with recent pronouncements from the Court of Appeal (in Churchill v Merthyr Tydfil County Bor- ough Council [2023] EWCA Civ 1416) affirming the court’s ability to order parties to participate in “non-court-based dispute resolution”. This underscores the judiciary’s commitment to facili- tating settlements through proactive measures. In addition to the voluntary nature of negotia- tions and ADR, the legal framework in England and Wales has certain mechanisms designed to incentivise parties to reach a settlement. Notably, “Part 36” and “Calderbank” offers are tools that offer cost incentives to encourage the parties to consider settlement seriously. The Civil Pro- cedure Rules, Part 36 procedure stands out as a beneficial mechanism (in particular for claim- ants), providing a structured framework that offers advantageous cost consequences. This procedure, tailored to expedite settlements, can be a useful tool in patent litigation proceedings. The case can be settled by an order agreed between the parties and sealed by the court. Often a “Tomlin” order is used if there are confi- dential settlement terms.
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