Expedited trials in English High Court Patent Cases – can you jump the queue?

Published

Aug 19 2021

Written By

Jae Park

Partner
UK

I'm a partner based in London specialising in IP with a particular focus on patents and designs, advising clients on all aspects of patents and design protection and enforcement, from filing to litigation and licensing.

Practices

Intellectual Property

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Last week of Trinity term, before the courts close for the summer vacation, is usually a very busy period for the High Court. This year seems to have been no exception, particularly for the recently appointed Mellor J (sitting as Chancery Interim Applications Judge) who had before him various applications, and among them a number of applications to expedite a patent trial (Abbott Laboratories v Dexcom Incorporated [2021] EWJC 2246 (Pat); Neurim Pharmaceuticals & Flynn Pharma v Generics UK & Mylan [2021] EWHC 2198 (Pat); Philips v Xiaomi [2021] EWHC 2170 (Pat)).

UK IP practitioners will be aware that the Patents Court has been extremely busy in recent times and there is no sign of things slowing down. But that has meant that the time to get to trial has been edging upwards – so can an application for expedition help parties to “jump the queue”?

**Expedition - Four Gore factors**

Expedition applications are not uncommon, but they are also not the norm. The leading case on expedition generally is Gore v Geox, which sets out four factors to be considered when making the application (the Gore factors):

whether the applicants have shown good reason for expedition;
whether expedition would interfere with good administration of justice;
whether expedition would cause prejudice to the party; and
whether there are any other special factors.

**The Nicoventures points**

Expedition applications in patent cases also come before the courts occasionally. The relevant factors applicable to such cases were recently considered in detail by Birss J (as he was then) in Nicoventures v Philip Morris, who added three particular points to the Gore…