Last year Europe’s antitrust watchdog
informed the Korean company that its use of standard
essential patents amounted, in its view, to an abuse of a
dominant position. Now Samsung has responded with a series of offers to modify its
One proposal would see the company promise not to seek
injunctions in Europe using some of its SEPs as long as it used
a specific process with would-be licensees to determine the
proper FRAND royalty rate.
Working out royalty rates is notoriously tricky and many
courts have been reluctant to help litigants thrash out the
commercial details of licensing deals. But Samsung has proposed
that court adjudication of any negotiations should be carried
out by the High Court in London or by the UPC.
That’s a strong endorsement for the IP
litigation system in England and Wales and for the judges who
But is the reputation of the UK courts under threat?
Managing IP has noted a trend towards allocating non-specialist
IP judges to IP cases. In the last four months, for example,
non-specialist judges have decided the high-profile trade mark
disputes Assos v ASOS, BskyB v Microsoft and Mattel v Zynga.
Of course there’s a strong argument for having
generalist judges: not least because they approach cases from a
fresh perspective. But IP law is technical and growing ever
The traditional view is that litigants dislike the cost of
bringing an action before the London courts (all those pricey
barristers and solicitors’ fees), but like the
quality and fullness of its rulings. A comprehensive and
well-reasoned ruling can deter appeals (saving the
parties’ time and money). And a win in London can
often force a settlement in multi-jurisdictional
It makes sense that the best decisions are made by judges
with plenty of experience in the field. But
London’s patent judges are increasingly tied up
with smartphone litigation. Once the Unified Patent Court comes
into effect, some of the UK’s IP judges may
(although there’s no definitive view on this) find
themselves in even greater demand. If they are, more
non-specialist IP judges will be appointed to try disputes,
particularly trade mark and copyright ones.
That could damage London’s reputation for
high-quality IP rulings. The answer is appoint more specialist
judges. One lawyer tells Managing IP that there is no shortage
of candidates, but there is a shortage of money to pay for
them, as budget cuts bite.
Such cost cutting could be short-sighted. English justice
– particularly in IP – is an export business.
Jeopardising it would be risky.