llumina, Inc ('Illumina') & Ors v Illumina, Inc & Ors, Court of Appeal - Patents Court, July 01, 2016, [2016] EWHC 1726 (Pat)

Resolution Date:July 01, 2016
Issuing Organization:Patents Court
Actores:llumina, Inc ('Illumina') & Ors v Illumina, Inc & Ors

Case No: HP-2015-000047, HC-2015-001175

Neutral Citation Number: [2016] EWHC 1726 (Pat)




Royal Courts of Justice

7 Rolls Building

Fetter Lane

London EC4A 1NL

Date: 01/07/2016



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Computer-aided transcript of the Stenograph Notes of Marten Walsh Cherer Ltd.,

1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.

Telephone No: 020 7067 2900. Fax No: 020 7831 6864

e-mail: info@martenwalshcherer.com

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MR. PAUL HARRIS QC and MS. RONIT KREISBERGER (instructed by Powell Gilbert LLP) appeared for the Claimants.

MR. DANIEL BEARD QC and MS. LIGIA OSEPCIU (instructed by Allen & Overy LLP) appeared for the Defendant.

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  1. This application, adjourned from a case management conference (``CMC'') heard before Birss J on 18th April 2016, arises in major patent litigation between a number of parties but primarily, if I can put it that way, between an American corporation, Illumina, and an English defendant. The case is due to be heard in the Patents Court, at what one might call an orthodox patent trial, listed in a window commencing 3rd July 2017, i.e. effectively in one year's time. When I say an ``orthodox'' patent trial, I mean that the claimants, who are the patentees or licensees of the patentees, seek injunctions for infringement, damages or an account of profits, and so forth, whereas the defendants contend that the patents are invalid or alternatively are not infringed.

  2. As I understand it, pleadings are considerably advanced on those technical issues. What has happened and given rise to the issue presented to the court today is an unfortunate procedural development. As I mentioned, the CMC was listed before Birss J in the Patents Court on 18th April. Not very long before that, the defendant had indicated that it wished to raise various competition issues which would arise if the patents were valid and infringed.

  3. It appears, from the incomplete information now before the court, that this was first ventilated in correspondence between the parties themselves and not their English solicitors at some time in March. As regards more formal steps in the English litigation, it was first raised in solicitors' correspondence on 1st April 2016, by reference to the decision of the Court of Justice of the European Union in the Huawei case, with a demand for a licence on FRAND terms. That led to a response from the claimants' solicitors, dated 8th April, saying:

    "Should your client intend to pursue a competition defence based on the principles set out by the CJEU in Huawei v ZTE, you should provide us without delay with your client's draft Amended Defence. This should fully particularise your client's case..."

  4. That prompted an application issued by the defendant on the 12th April, to be heard at the CMC shortly afterwards, seeking permission to introduce what has been described as a non-technical defence, i.e. a defence raising various competition issues. There are, in fact, two actions before the court, the first concerning two patents and the second concerning a third patent, but they have been ordered to be heard together. For that reason, two draft non-technical defences were included with...

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