This was a practice management decision on 12 October 2016 by Mr Justice Birss relating to disclosure obligations of defendants. The first instance trial in this action is currently listed to be heard in February 2017.

Civil Procedure Rule (CPR) 63.9 governs disclosure in patent cases. Practice direction 63PD6.1 addresses Product & Process Descriptions (PPDs) and provides that when a party serves a PPD they are relieved of the obligation of standard disclosure relating to “the infringement of a patent by a product or process”.

The claimant alleged the defendants’ current system infringed and that they had also offered to supply a new infringing system. The defendants denied infringement and also said that the offer of the new system only related to future supply after patent expiry. The defendants’ PPD related only to their current system.

Birss J said that PPDs are commonly concerned with the nature/characteristics of the product or process in issue and whether or not it falls within the claims, but not a factual issue of whether or not certain acts (in this case offers) have been carried out. Though a PPD had been served, it did not alleviate the defendants from their obligations to give disclosure relating to all matters of infringement. They were therefore ordered to disclose a class of documents regarding the offers they had made in relation to the new system.