Just how 'anti-patent' are the UK courts?

Abstract

There has been a perception in recent years that the courts of England and Wales have been unfriendly territory for patentees. This reputation may not simply be put down to an attitude of the courts. It may stem from the forensic nature of the analysis of infringement and validity in these courts making it hard to hide a weak patent, it may stem from opponents only seeking to attack what they perceive to be weak patents. However, whatever the reason, this reputation has arisen, and has in some cases led patentees to avoid litigating their patents in these courts at all costs. Recently, the authors have detected a swing in this perception and to test this notion they analysed the validity and infringement decisions given by these courts over the last 19 months. Fifty-five judgments were analysed, involving the consideration of 47 cases and 61 patents. It was found that the overall success rate for the patentee was around 38 per cent, or just over two in five. Although the sample size is not large enough for a full statistical analysis, the result appears to indicate that the courts of England and Wales are either becoming more friendly to the patentee, opponents are becoming more adventurous, or the reputation was unfounded in the first place. It will be interesting to see how the statistics develop, but it would appear that the UK is becoming less of a jurisdiction to fear if you are defending a patent.