18 August 2015

18 August 2015

At the hearing

As reported previously, culmination of the Bristows’ mock real time UPC action, the oral hearing, was held on 28 July 2015.  Certain case management issues were resolved at the beginning of the hearing.  The court directed that validity would be discussed first, with the defendant counterclaiming for revocation being invited to speak first and allocated half an hour for submissions. This was split between two advocates - one English (Myles Jelf) and one French (Anne-Laure Bouzanquet) - from the defendants' team.  In response, the claimant likewise used two advocates, albeit in their case, both English (James Boon and Katie Hutchinson).  Again half an hour was allocated.
 
Much of the discussion centred on the burden of proof applicable in the UPC to show availability of a crucial prior oral disclosure – a lecture at an academic conference.  Unsurprisingly on the facts, the defendant team argued for an English-style balance of probabilities approach, whilst the claimant team argued for an EPO style "to the hilt" test, adding that EPO has developed particular principles for oral disclosures at conferences, including that the evidence of the lecturer alone was not sufficiently reliable.  The parties agreed that EPO case law was not binding on the UPC, but the claimant argued strongly that it was important not to diverge from the practice of the patent granting authority, whilst accepting that in time there could be a convergence of practice, with UPC decisions influencing the EPO.  The defendant team pointed out, however, that there was a difference between substantive law and procedural law, and that the EPO's approach on this issue of burden of proof was a reflection of it not being set up to resolve evidential disputes, whereas the court was perfectly able to do so.
 
On obviousness, both teams applied a problem solution analysis, whilst noting that other national approaches could also be applied.  They both agreed that either way, the same result would be reached - though of course disagreeing as to what that result would be.
 
After submissions, the expert witnesses were called.  The presiding judge invited the technical judge ("judge" Adair) to lead the questioning.  He did so in a way reminiscent of an Oxbridge tutor trying to coax the correct answer from a nervous 18 year old interviewee.  His questioning revealed his own views on the some aspects of the case, and he even offered his own evidence in the course of questioning.  He was also gently admonished by presiding judge Westmacott for going on rather too long, pointing out that of the allocated time, perhaps the parties might want at least some!
 
The parties were also allowed to question the witnesses, and the nature of the questions from the two parties was indistinguishable in terms of being leading or non-leading: the court did not pull up either "re-examiner" when straying over the normal English line.
 
Each questioning session lasted only 20 or 25 minutes, but each witness was forced into making an important concession:  in the case of the defendants' witness (Claire Wilson) that she had taken a stepwise approach in her analysis of obviousness, whilst the claimants' witness (Charlie French) had approached the prior art with a significant degree of scepticism due to the nature of the journal in which the prior art article had been published (in her view a poorly regarded journal).
 
At 2.00pm the parties gave short final submissions on validity in the light of the evidence (curtailed by 5 minutes for the claimants as they had overrun on their submissions in the morning).
 
The court then moved on to infringement, which, to remind readers, centred on the responsibility of the defendants for off-label prescription for the patented second medical use.  First of all Dr Bacon, an ex-sales representative of the defendants was called on behalf of the claimant.  His evidence had been filed rather late but had been admitted on the basis that the defendants could open the questioning of him.  This was very much English style, and a tough battle of wills, but brought to an end by the court when time was running short.  Questioning by the claimants in response was less English style and certainly over-stepped normal re-examination boundaries, including putting to the witness a new document never before seen in the case, which was a picture of a "booby prize" given to the witness when he had come last in the sales team one month.  It seemed clear that from Dr Bacon’s perspective the person who set the rules on how salesmen went about their tasks was his immediate boss, one Mr Brian Cordery, but who had not been called to give evidence.
 
It was not only the parties who introduced a little humour into the otherwise deadly serious subject of patent litigation.  One of the perks of the role of “puppet-master” Alan Johnson, was that he could allocate roles taking into account the natural character of the actors and actresses.  Two such characters were Sally Field and Brian Cordery.  Anyone knowing these two would know that among their traits are that Sally would never dream of doing anything unethical, and is unflappable under any circumstances; whilst Brian is incredibly diligent and hard-working.  These character traits were reflected in the evidence of the next witness, Dr Field, the CEO of the defendants.  She was charged with defending her company from allegations of deliberate encouragement of off-label prescription which she did in response to questioning by “judge” Rieu by attributing the stellar sales achieved by the sales staff, to Mr Cordery’s legendary inspiration and work ethic.  She was hence, able to justify everything done in a balanced and logical manner.  However, she was plainly not the controlling mind of the company in relation to the real practice of the company in sales promotion matters; and in response to questioning by the court confirmed that Mr Cordery was still employed and so could have been called to rebut Dr Bacon’s evidence directly.
 
That left submissions on infringement.  Again the time was divided equally between the teams and each party again used two advocates so as to split the work.  The claimants this time fielded Rob Burrows and Amy Cullen, whilst the multi-national defendant team used German qualified Benedikt Migdal and Liz Cohen, with additional comments from Claire Phipps-Jones.
 
The judges indicated that they would try to abide by the direction to produce the written decision within six weeks.  Unusually for adversaries in litigation, the parties and the witnesses then retired together for well-earned drinks at a nearby Public House!

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