Illumina, Inc & Ors v Premaitha Health PLC

Where a proposed competition defence in patent litigation depends materially on the outcome and scope of the technical patent trial, the court may adjourn determination of permission, pleading sufficiency and any strike-out or summary judgment issues until that outcome is known. The later hearing should permit a more focused pleading and efficient determination. Further matters, such as regulatory investigations or incomplete disclosure, may support the case-management decision but will not necessarily justify an adjournment independently. Costs may be reserved where their fair allocation depends on the later course of the litigation. An applicant bears particular responsibility for considering how an application should sensibly be pursued and determined.

The judgment concerned an application by Premaitha Health PLC to introduce non-technical competition defences in consolidated patent infringement proceedings brought by Illumina and other claimants. The proposed defences relied on competition-law arguments, including an alleged abuse of dominance and matters arising under Article 101 of the Treaty on the Functioning of the European Union and the Chapter 1 prohibition under the Competition Act 1998.

The technical patent trial was listed for the following year. The court had to decide whether to determine immediately the arguability and adequacy of the proposed defences, or adjourn the application until after judgment on the technical issues.

1. Application adjourned. The application to introduce the non-technical defences was adjourned until judgment in the technical patent trial had been handed down. The subsequent application was to be heard as directed by the trial judge.
2. The proposed competition defences were contingent on the technical outcome. If no valid claim was infringed, they would fall away. If only some claims were infringed, the scope of the relevant market and the shape of the competition arguments could materially change. The technical judgment would therefore enable a more focused and sophisticated pleading.
3. The draft defences were in places vague and general. The court considered it inefficient to conduct a substantial hearing on arguability and pleading adequacy when the legal issues might later be altered by the patent findings and the resulting pleading might be appealed.
4. The possible European Commission investigation and the defendant’s limited access to the Pooled Patents Agreement were supportive considerations. They did not, individually or together, justify the adjournment independently of the main case-management reason.
5. The defendant was permitted to serve revised draft non-technical defences after judgment in the technical trial. Costs were reserved, except that there was no order for the defendant’s costs of the present hearing. An applicant bears particular responsibility for considering the sensible manner in which its application should proceed.