Cranway Ltd v (Playtech Ltd & Anor

Patent infringement pleadings must identify the material facts and specific acts relied on. A claimant must give an example of each type of infringement alleged and, where different products are relied on, an example of each product. Legal conclusions, vague descriptions of software or systems, and unparticularised allegations of common design do not satisfy that requirement.

Permission to serve proceedings outside the jurisdiction requires evidence addressing the merits. A bare statement that the claim has a reasonable prospect of success is insufficient. The evidence must disclose facts which, if proved, would establish a serious issue to be tried.

Cranway Limited, proprietor of a patent for a computer gaming system, alleged infringement by Playtech Limited and the Horserace Totalisator Board. The particulars alleged infringement through gaming systems, software and constituent parts, and alleged that each defendant was responsible for acts of subsidiaries or affiliates through procurement and common design.

A Master had permitted service on Playtech outside the jurisdiction. Playtech applied to set that order aside, and the Tote applied to strike out the claim. The issues were whether the infringement allegations were adequately particularised, whether the evidence supported service out, and whether the proceedings should be struck out or amended.

1. Infringement particulars. The particulars of claim had to plead facts rather than legal conclusions. Under Part 16.4 of the Civil Procedure Rules 1998, and the patent-specific requirements in Part 63.9 and paragraph 11 of the Practice Direction, the claimant had to identify the claims alleged to be infringed and give at least one example of each type of infringement. The pleading merely alleged provision of broadly defined gaming systems and software. It did not identify the specific acts, products or hardware involved.
2. The patent claimed a system comprising hardware and software. Pleading the provision of software alone did not, without more, plead infringement of a product claim containing all the claim integers. The allegation of liability for subsidiaries and affiliates was also defective. It identified neither a procured act nor the common design, and pleaded no facts from which such a design could be inferred.
3. Service out. The evidence supporting permission to serve Playtech outside the jurisdiction had to address the merits of the underlying claim. Under Part 6.21 of the Civil Procedure Rules 1998, a solicitor’s bare statement of belief, coupled with unparticularised pleadings, did not establish a serious issue to be tried. The approach stated in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1AC 438 remained applicable. Patent proceedings were subject to no special lower threshold.
4. The order permitting service outside the jurisdiction was therefore set aside. The Tote’s pleading was equally deficient, repeating statutory language without identifying the acts of infringement, the relevant software or any pleaded basis for common design. The conditions for strike-out under Part 3.4 were satisfied.
5. Although strike-out was a drastic step, the claimant had already had an opportunity to amend and had produced no proper draft amendment. The claim against both defendants was struck out. The claimant was ordered to pay each defendant’s costs, with an interim payment of £10,000 to each. Permission to appeal was refused.

The judgment describes an order by Master Bowles dated 3 August 2006 permitting service on Playtech outside the jurisdiction. That order was set aside by the High Court. The judgment also refers to earlier Court of Appeal litigation concerning the same patent, but that decision formed part of the same litigation and was not an appeal from this judgment.