The final key difference in UK litigation is a procedural requirement which was brought in over twenty years ago. Litigation documents such as particulars of claim, defence statements and witness statements will record a statement of truth in the following format (depending on the document being verified):
“I believe that the facts stated in [these/this] [Particulars of Claim/Witness Statement] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
Statements of Truth are required in all UK litigation - but in IPR infringement cases the requirement of a “Statement of Truth” can be a powerful means of progressing a patent infringement claim before issuing proceedings, if it is coupled with a Claim Chart and the correspondence between the parties following a PAP letter.
In the course of exchanges of letters between the Claimant and the Defendant after a PAP letter and before issuing proceedings, it is open to a Claimant to serve a Claim Chart on the Defendant and ask the Defendant some Yes/No questions regarding the Claim Chart. The Claimant can state “Please note that your responses to these Yes/No questions will implicitly require you to be making a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true’ in accordance with Rule 22 of the CPR.” Careful use of Yes/No questions can quickly lead to a narrowing of the issues between the parties and can progress an early settlement. There is recent UK case law which confirms that Statements of Truth can cover pre-action correspondence (see e.g Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858 where a very strong Court of Appeal (Civil Division) held that a witness statement verified by a statement of truth made before the commencement of proceedings could give rise to contempt and be the subject of an application for committal, even though proceedings were never issued after the would-be defendant challenged the truth of the statement).
There are no juries in UK patent infringement cases - the judge decides the quantum based upon expert accounting evidence once it has been determined that a patent has been infringed. Additionally, it is possible to quickly litigate a patent infringement case in the UK courts with rapid use of the UK Court of Appeal and the UK Supreme Court, if there are genuine points of law and construction that need to be resolved..
If a patent infringement case does result in proceedings being issued and served, then the US and UK systems become more similar. In both jurisdictions it takes between one and three years for the matter to reach a trial in the Federal Courts or at the Royal Court of Justice. Thereafter, if a matter goes to appeal or to the jurisdictions’ respective Supreme Courts on a point of law or construction, it takes around the same time in both countries for the matters to reach their final conclusion.
The one clear difference of US litigation for patent infringement is the fact that infringement damages can be spectacularly high because the awards are given by juries. There are no jury trials in UK civil litigation and damages awards are based upon expert economic evidence and precedents - which leads to UK damages being lower but also less subject to appeal. Additionally, UK granted patents are considered prima facie valid. By way of contrast, US patent cases are frequently subject to arbitrary IPR parallel proceedings brought at the US Patents Appeals and Tribunals Board (PTAB) by US defendants alleging that the patent should not have been granted.