England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		31/10/2012

His Honour Judge Birss QC :

1. This is a paper application in a patent case. The case is a claim for infringement of UK patent GB 2 318 662. The claimant contends that the defendants have infringed the patent. The defendants deny infringement and contend the patent is invalid. The trial is fixed to be heard with another case about the same patent starting on 4^th March 2013.
2. On 12th July 2012 Floyd J sitting in the Patents County Court made an order for directions. Paragraph 6(a) required the first defendant to serve an amended statement of case dealing with certain issues by 9th August 2012. The first defendant did not do so. On 19th September 2012 I made an order that unless the first defendant complied with paragraph 6(a) of the order of 12th July within 21 days, its defence would be struck out and judgment entered for the claimant.
3. The first defendant has not complied with the 19^th September order either. On 23rd October claimant applied for an order that the first defendant's defence be struck out, judgment entered for the claimant and for consequential orders. The consequential orders sought are for an injunction (paragraph 2), delivery up (paragraph 3), costs (paragraph 4), an inquiry as to damages (paragraphs 5), additional damages (paragraph 6) and dissemination of the judgment (paragraph 7). The application is supported by a witness statement of Alan Johnson of Bristows, the claimant's solicitor.
4. No response to the claimant's application has been received by the court within the period set by r63.25(2). The claimant is plainly entitled to relief in general terms subject to certain points of detail.
5. I will make an order for the injunction, delivery up and damages inquiry in the terms sought by the claimant. There is no reason not to make the orders in those terms. They are conventional orders in these circumstances.
6. In relation to costs (paragraph 4) the claimant is entitled to an order for costs in its favour and to a summary assessment of those costs. The claimant sought to have the summary assessment conducted as part of this application. That is a very convenient course to adopt as long as the materials provided allow it to be done. However the information provided with the claimant's application is not sufficient to allow a summary assessment to take place. For a number of the stages in the proceeding as identified in Table A of Section 25C of the Costs Practice Direction (CPR Pt 45), the evidence from the claimant in relation to costs simply states that the claimant's costs are higher than the scale limit and so the scale limit is claimed. No doubt this has been done in order to seek to save costs but that approach is not sufficient to allow a Patents County Court summary assessment to be undertaken. Stating that a party's costs for a given stage are more than the PCC scale limit for that stage does not justify recovering the full amount of the applicable scale limit. That is not least because it may be that a summary assessment of a party's actual costs for a given stage produces a sum lower than the scale limit (see Westwood v Knight [2011] EWPCC 11). Accordingly the order I will make provides for a summary assessment to be conducted in writing and gives directions for that to be undertaken.
7. In relation to additional damages (paragraph 6), I will direct that the issue of entitlement to additional damages can be raised at the damages enquiry (if any) and dealt with there.
8. In relation to an order for dissemination (paragraph 7) the Court of Appeal's judgment in Samsung v Apple [2012] EWCA Civ 1339 considered the case in which such an order was sought in an action for a declaration of non-infringement. In paragraph 69 Sir Robin Jacob said this:

69. [… ] I am far from saying that publicity orders of this sort should be the norm. On the contrary I rather think the court should be satisfied that such an order is desirable before an order is made - otherwise disputes about publicity orders are apt to take on a life of their own as ancillary satellite disputes. They should normally only be made, in the case of a successful intellectual property owner where they serve one of the two purposes set out in Art. 27 of the Enforcement Directive and in the case of a successful non-infringer where there is a real need to dispel commercial uncertainty in the marketplace (either with the non-infringer's customers or the public in general).

9. This case is different from Samsung v Apple since the order sought here is in an action for infringement and is therefore within article 15 of the Enforcement Directive and recital 27. However it is clear that the Court of Appeal's judgment, that the court should be satisfied an order is desirable before it is made, applies in both cases. In order to have a proper basis for making such an order, some material would need to be placed before the court in support. Moreover this is a judgment in default of defence and the considerations applicable to declaratory orders in similar circumstances (see e.g. Wallersteiner v Moir [1974] 1 WLR 991) seem to me to be potentially relevant here too. There is no evidence before me addressing this issue, no doubt because it was not considered necessary or cost effective to do so. Accordingly I will not make an order for dissemination at this stage but will give the claimant liberty to apply. The application (if any) will have to be made within a short period and supported by evidence.