New report from Mewburn Ellis
A report released by IP firm Mewburn Ellis on patent litigation trends in England and Wales, has found that less than five percent of patent claims filed in court reach trial.
The report examines data collected between 1 January 2020 and 1 December 2021 in both the Patents Court and the Intellectual Property Enterprise Court (IPEC). It looks at the types and sizes of businesses that are most frequently filing claims as well as where they are based. It also explores the industries and technical areas where parties tend to operate, and the strategies deployed on both sides of the dispute.
It found that the majority (75%) of claims in the Patents Court were filed by large or very large multinational companies, but that small and medium sized businesses made up a similar majority of claims in the IPEC, indicating that its key goal of being a venue for smaller sized companies is being met.
There is a similar split between the Patents Court and IPEC in terms of claims by country. IPEC claimants mostly originated from the UK but claims in the Patents Court came largely from US-based companies, suggesting that England and Wales remain popular locations for high value international patent litigation.
In the period under examination, which was characterised by the Covid-19 pandemic, proceedings in the Patents Court tended to take 18 months whereas in the IPEC they took 22 months. This was an expected variation of the desired trend that IPEC proceedings should be faster than Patents Court cases.
A claimant can only be fully successful if the judge finds that their patent is both valid and infringed. In the Patents Court only a third of claimants were successful on that basis. Invalidation in the IPEC was found to be highly likely (71%). Taken together, the results indicate the significant risk of patent litigation that goes all the way to trial for the claimant in terms both of financial cost and in many cases, loss of the patent asset itself.
Sean Jauss, Partner, Solicitor, Litigator and Head of Legal at Mewburn Ellis commented:
“The figures in this report indicate that patent litigation in England and Wales is a risky endeavour for the claimant, chiefly because a patent at trial is likely to be revoked for invalidity and ultimately lost. However, the vast majority of claims do not proceed to trial, either because the claim is weak or the claimant has strong infringement arguments and a robust validity position, which encourages settlement. It is important, therefore, for claimants and defendants to be aware of the risks and to develop litigation strategies that maximise the likelihood of a desirable outcome.
“I am very pleased and grateful to the team behind the production of this report and confident that these insightful findings will be of interest to those who may be looking to file a claim or are already in the midst of a dispute.”