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 behaviour.
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 oversee it.
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 more so.
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 litigation.
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.