When Mr Justice Arnold (right) censures litigants for presenting over-long written submissions, you know that they are in trouble. After all, Arnold is an enthusiastic supporter of the written word. His ruling in MedImmune v Novartis included 578 paragraphs in more than 110 chapters. (At just under 71,500 words, that’s longer than the modernist classic Mrs Dalloway and more than twice as long as Shakespeare’s Hamlet).
But this week, in his ruling in a dispute between coffee capsule maker Dualit and coffee machine manufacturer Nestec, he criticised Dualit for presenting written closing submissions that ran to 382 paragraphs (not including a separate 11-paragraph schedule), despite the technology in the case being relatively simple.
To be fair to Arnold, his primary concern focused on the number of issues the parties raised in the course of their dispute, rather than simply the length of the submissions. “This case is a paradigm example of the regrettable tendency of current patent litigation in this country towards proliferation of issues rather than concentration upon the essentials,” he wrote. “The result is unnecessary expenditure of both costs and the court’s time.”
Arnold’s comments raise two issues. The first is whether lengthy submissions and subsequent criticisms of them matter.
They are unlikely to matter to Dualit, which won the case over the patent (see image left). Arnold ruled that Nestec’s European Patent (UK) No 2 103 236 patent is invalid – and that even if it was not, Dualit had not infringed it. Although the company will have racked up costs in making such a comprehensive submission (The FT suggests £1 million during the course of the 10-month long litigation), the gains could far outweigh the expense. Dualit’s managing director (and defendant in the case) Leslie Gort-Barten estimates that the worldwide market for coffee capsules topped £2.4bn in 2012. Gaining a much bigger slice of the action is surely worth the legal bill.
The second issue raised by Arnold’s comments relates to the unified patent court. The connection between this piece of litigation and the forthcoming (we think) introduction of a 25-country litigation system might not be immediately obvious but the new court is likely to adopt far more streamlined procedures. Written evidence will dominate proceedings and oral hearings will play a lesser role. In short, procedures will be more akin to today’s litigation in Germany or the Netherlands than that in the UK. Arnold’s comments may be a warning to litigants and UK practitioners that they should start thinking now about adopting a more continental approach and focusing on the essentials.