How virtual working has had a positive impact on UK IP litigation

Unlike many European jurisdictions, the civil courts in the United Kingdom have remained operational throughout the covid-19 pandemic, predominantly through remote and hybrid hearings. In-person hearings, with the necessary safety measures to prevent transmission, remain available where absolutely necessary, but it has been possible for several trials to successfully be run entirely remotely.

UK IP claims are progressing (virtually) normally

Following a few adjournments in Spring 2020 as the courts got to grips with the situation, IP claims are largely proceeding as usual (if not as normal). New claims can be issued and will progress in line with the usual timelines, with a few key changes. In 2020, 48 High Court patent claims were filed, compared with 55 in 2019 – only a small reduction. Since April 2020, 11 trials have taken place in the Patents Court, of which five were heard entirely remotely and four as hybrid proceedings. Two were heard in person.

The UK courts have largely kept the wheels in motion by conducting all appropriate hearings and trials remotely via telephone and video link software, using a range of familiar software such as BT MeetMe, Skype for Business and Zoom. A further change that has introduced greater flexibility has been that parties can agree litigation deadline extensions of up to 56 days without formally notifying the court (rather than the usual 28 days), so long as this does not jeopardise the hearing date.

Practical considerations for hearings

A new practice direction – CPR PD51Y – was introduced as a temporary measure to clarify how video or audio hearings should be conducted during the pandemic. IP judges in the United Kingdom have embraced remote hearings, although there remains some reluctance to order full trials to take place entirely remotely, with a preference for hybrid hearings, where some of the parties are present in the court room and others participate virtually. While, inevitably, the same challenges associated with any videoconferencing software can potentially arise during a remote or hybrid hearing, the court has sought to implement suitable measures to see that proceedings go ahead as seamlessly as possible.

A move to remote and hybrid hearings has changed the way in which third parties are able to attend hearings and trials. Previously, where members of the public were able to attend and observe proceedings, the need to ensure appropriate social distancing has prompted new measures. The Courts and Tribunals Service has issued guidance on attending hearings in the Royal Courts of Justice and the Rolls Building (the seat of the Patents Court). In particular, where a video link is used for third parties to access the proceedings, only those who are given explicit permission to do so by the court may use the link. Further, any recording or taking of screen shots is prohibited. The court has demonstrated that it will take any unauthorised sharing seriously (for more information, see Gubarev v Orbis). In some cases, if a third party’s request to attend a hearing comes at short notice, it may be provided with a non-confidential version of the transcript after the hearing.

Justice Birss described in his judgment how proceedings between Edwards and Meril had run as a hybrid hearing and why this had been appropriate. In-person attendance was limited to six participants from each party, the usher, two staff from the videoconferencing service and the judge, with others attending remotely by video link – links were sent to those individuals with the court’s express permission based on a pre-prepared list of attendees. Four witnesses in the United States were cross-examined via videoconferencing and were able to watch their counterparts give evidence.

Orders relating to the practical arrangements for proceedings give further guidance on how remote or hybrid hearings are being run. The order from Birss in the proceedings between Optis and Apple confirmed that communication between legal teams and clients both present in the court and attending virtually could take place using WhatsApp, text or email, so that instructions could be taken and matters arising at trial discussed. It also set out that the transcript writers could produce a copy of the video feed in order to prepare the finalised transcript, on the condition that it was deleted as soon as the transcript was finished.

CJEU and General Court

On 3 April 2020 the Court of Justice of the European Union (CJEU) and General Court of the European Union announced temporary changes to their working arrangements, which are still in place. Under these, proceedings can continue to go ahead, although the changes recognise issues associated with travel restrictions and the need to socially distance. If parties are unable to travel to Luxembourg to the CJEU, they may be permitted to attend a hearing remotely. In the case of the General Court, such requests must be lodged by way of a specific emergency measure.

Procedural time limits for instituting proceedings and lodging appeals are unaffected. However, time limits prescribed in on-going proceedings (except for urgent proceedings) have been extended by one month in CJEU cases and have been “adapted to the context of the unprecedented health crisis” in General Court cases.