Basic litigation format
The accelerated patent proceedings start with the plaintiff's request for leave to litigate in accordance with this special docket regime, together with a draft writ of summons. This leave is always granted, and in its decision the Court determines the litigation schedule, including the date of the hearing. In principle, each party files one brief and then there is a hearing. If the defendant files a counterclaim (e.g. for the invalidation of the patent if the case starts out as infringement proceedings), this should be done together with the statement of defence. If such a counterclaim is filed, the original plaintiff may file one brief in response.
At the start of the litigation, the plaintiff should file all available exhibits on which he intends to rely. The same applies to the defendant, who should file all his exhibits together with the statement of defence.
1. Filing Exhibits
Experience over the last years has shown that as the case progresses, the parties find that there is additional evidence that they would like to submit. In practice, this meant that two weeks before the hearing, additional exhibits were filed by both parties, often considerable in number and/or volume.
Pursuant to the new rules, exhibits need to be filed earlier. Additional evidence needs to be filed within six weeks after the date set for the statement of defence. After that period, additional evidence may only be filed in reply to evidence filed by the other party, until four weeks before the hearing. The court has a discretion to refuse exhibits if it finds that they were not filed in time.
The exhibits should be filed together with a brief explanation of their relevance, and also where appropriate the relevant paragraphs should be pointed out.
If the additional exhibits contain expert reports, these expert reports may be no longer than three pages in a readable format.
If parties have filed expert reports, the District Court may request the experts to attend the hearing and to be prepared to answer questions of the court. The same questions can then also be put before the other party's expert. There is no opportunity for cross examination of the expert, but the parties may comment on the experts' answers.
3. Stenographic report
The new regulations provide that the court may have a stenographic report made of the hearing or have the hearing taped. The stenographic report or the tape may then be added to the file when parties jointly request this.
The new docket regime should ideally prevent the litigants from radical course changes during the litigation, as well as prevent them from making bulk filings just two weeks before the hearing. On the other hand it is not uncommon that the core of the legal battle only becomes clear after the statement of defence has been filed. The six weeks term for filing exhibits in response, particularly where an additional expert statement would benefit the case, may be on the short side.
Having the experts available at the hearing would normally aid the decision making process, and the stenographic report could prove to be useful for further litigation, particularly in an international context.
The new regulations have immediate effect and also apply to pending cases, to the extent however, that these do not conflict with prior issued court orders granting leave to litigate in accordance with the accelerated docket regime.