Patent litigation is notoriously complicated, expensive and slow. At the end of the 19th Century, Master of the Rolls (the senior judge in the Court of Appeal in England and Wales) Lord Esher MR eloquently bemoaned the complexity of litigating patent disputes:
“Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this [holding up the papers] invariably, one set for each Counsel, one set for each Judge, of course, and by the voluminous shorthand notes: we know ‘Here is a patent case.’ Now, what is the result of all this? Why, that a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief.” (Ungar v Sugar (1892) 9 RPC 113 at 116-117)
Since that time, not much has changed. The difficulty with patent litigation is multi-faceted. Patents (as with other intellectual property rights) are territorial in nature. The nature of the patent grant relates to an invention which will have been made in the past. This requires a consideration of the “state of the art” at some point in the past. The scope of patent rights can often be illusive and abstract. The scope of protection for inventions is determined by sometimes difficult to understand canons of claim construction, based on the understanding of a person of ordinary skill in the art at the relevant time.
But these difficulties are not unique to patent disputes alone. Software litigation can be just as complicated, expensive and slow, particularly where it concerns, for example, language structures and application program interfaces. The scope of protection for copyright for software, for example, can be no less illusive than patent rights, depending on the degree of originality of the work, considered after abstracting the nonoriginal elements and set-pieces or scenes-à-faire. The tribunal must also take into account the degree to which the work is dictated by external functional requisites. Technology licenses frequently involve grants of rights to use patents, copyright or technical information and can involve the same issues of scope and validity both of the existing rights and the ownership of new developments or works arising from the original rights.
Pure intellectual property disputes (unlike contractual disputes) can arise between parties who have had no previous relationship. They can arise almost innocently seemingly out of nowhere or they can arise because of a calculated attempt to use another’s inventions or ideas. They can be justified as a legitimate attempt to compete or be seen as a sordid theft of another’s labour.
Further complicating the issue is the fact that intellectual property rights are generally national but, as most large companies trade and operate internationally, the dispute is usually international. The scope of the parties’ rights can be interpreted differently in different countries, even when dealing with the same wording in a patent or the same software code.
Such disputes can be difficult to settle. Technology contracts and intellectual property infringement claims usually involve allegations of on-going continuous infringements or breaches which occurred in the past but are continuing up to the moment of trial or hearing. This can be distinguished from much commercial litigation that deals with an historical tortious event or contractual breach that occurred in the past and is not continuing. As a result, IP disputes are frequently as much about the present behaviour of the parties as an historical evaluation of past damages or past compensation. They are not about past monetary compensation alone.
There is also the matter of whether the judges and juries adjudicating the dispute will have the requisite skills. Few countries have specialist Intellectual Property courts and so there is a risk of getting a judge who knows nothing about the law in this area and almost certainly will not have the requisite technical expertise. In the US, all these cases, patent, copyright, software or contract disputes must be heard by a jury, who will decide technical issues of fact – and lawyers for one or the other party will typically remove from the jury the most educated and knowledgeable potential jurors.
Finally, the discovery and trial process in the US, in particular, results in the costs of the average patent case exceeding US$2 million dollars and sometimes much, much more, in some cases, into the tens or hundreds of millions.