Is the reputation of London's IP rulings under threat?
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Is the reputation of London's IP rulings under threat?

If you want evidence that the UK’s IP courts are held in high regard, look no further than Samsung’s offer to the European Commission

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.

more from across site and ros bottom lb

More from across our site

High-earning businesses place most value on the depth of the external legal teams advising them, according to a survey of nearly 29,000 in-house counsel
Kilpatrick Townsend was recognised as Americas firm of the year, while patent powerhouse James Haley won a lifetime achievement award
Partners at Foley Hoag and Kilburn & Strode explore how US and UK courts have addressed questions of AI and inventorship
In-house lawyers have considerable influence over law firms’ actions, so they must use that power to push their external advisers to adopt sustainable practices
We provide a rundown of Managing IP’s news and analysis from the week, and review what’s been happening elsewhere in IP
Counsel say they’re advising clients to keep a close eye on confidentiality agreements after the FTC voted to ban non-competes
Data from Managing IP+’s Talent Tracker shows US firms making major swoops for IP teams, while South Korea has also been a buoyant market
The finalists for the 13th annual awards have been announced
Counsel reveal how a proposal to create separate briefings for discretionary denials at the USPTO could affect their PTAB strategies
The UK Supreme Court rejected the firm’s appeal against an earlier ruling because it did not raise an arguable point of law
Gift this article