Monsanto Technology LLC v Cargill International SA & Anor

In patent litigation, costs are governed by the general principles in Civil Procedure Rules 1998, including the court’s discretion to make issue-based orders. The court should identify the overall winner, who will ordinarily recover general costs. A successful party may nevertheless lose, or be required to pay, costs attributable to issues on which it was unsuccessful, but increasingly strong justification is required as the court departs from the general rule. Where the parties seek a broad percentage or fixed sum instead of detailed assessment, the resulting calculation is necessarily approximate. A rough-and-ready assessment is not a substitute for detailed assessment, and the court should not attempt mathematical precision.

The judgment concerned the costs consequences of patent proceedings between Monsanto Technology LLC and Cargill International SA and Cargill plc. Monsanto had succeeded on most substantial issues, including the Syngenta experiments question, but had failed on construction of the term isolated and on the validity of claim 6. Cargill had succeeded on infringement. The parties sought a percentage or fixed costs order rather than detailed assessment. The central issue was how the court should identify the overall winner and allocate costs between general costs and costs attributable to particular issues.

1. The court identified Monsanto as the overall winner, notwithstanding Cargill’s success on infringement. Monsanto was ordinarily entitled to its general costs, subject to deductions for issues on which it had failed.

2. Under the general principles of Civil Procedure Rules 1998, costs in patent actions are dealt with on the same basis as costs in other litigation. The court must consider both whether the successful party should recover costs of an issue and whether it should pay the unsuccessful party’s costs of that issue. Departure from the general rule requires increasingly strong justification.

3. Where parties request a percentage or fixed order instead of detailed assessment, the judge conducts a broad assessment based on the overall perspective of the trial. The exercise lacks mathematical precision. The court should not attempt to resolve every dispute about the parties’ cost schedules.

4. As a convenient rule of thumb, where the successful party should neither recover its own costs of an issue nor avoid paying the other party’s costs of that issue, the deduction may be doubled to reflect both elements.

5. Cargill was denied recovery of the costs of its unsuccessful acquiescence issue and was required to pay one-half of Monsanto’s experimental costs, one-half of Monsanto’s acquiescence costs, the costs relating to the unsuccessful opposition to amendment, and the costs of the excluded Syngenta experiments. Monsanto’s recovery was reduced for its failure on claim 6.

6. The resulting balance was rounded in Cargill’s favour. Cargill was ordered to pay Monsanto £800,000 in costs.