Kwikbolt Ltd v Airbus Operations Ltd

Transfer from IPEC to the Patents Court depends on the interests of justice, assessed by reference to the parties’ resources, the value and complexity of the claim, the likely trial length, and the parties’ approach to the litigation. Where a case can fairly be tried in two or three days, access to justice for a party with limited means is ordinarily the most important consideration. A high-value injunction does not, by itself, require transfer. The potential impact of an injunction supports transfer only where it creates a realistic risk that the defendant’s ability to present its defence would be materially constrained in IPEC.

Kwikbolt, proprietor of a patent for a removable blind fastener, alleged that Airbus infringed the patent by using Centrix fasteners. Airbus applied to transfer the proceedings from IPEC to the Patents Court. It relied on the anticipated complexity and duration of the proceedings, the value and potential consequences of an injunction, and the disparity between the parties’ resources.

The court considered whether the pleaded infringement, validity and relief issues could be tried fairly and efficiently in IPEC, and whether Airbus’s potential exposure justified transfer.

1. Application refused. The proceedings were not transferred to the Patents Court.
2. Under CPR 63.18(2), the court had regard to Practice Direction 30. The relevant considerations included whether a party could afford litigation outside IPEC and whether the claim was appropriate for IPEC having regard to value, complexity and estimated trial length. The interests of justice remained the overriding consideration.
3. The issues concerned a relatively uncomplicated mechanical invention. Although the pleadings raised infringement, validity, inventive step, sufficiency, the doctrine of equivalents and potentially a Formstein defence, the case could fairly be tried in two days, or at most three. The court could case-manage the proceedings to focus the issues and prevent marginal matters from proliferating.
4. Where proceedings can fairly be tried within two or three days, access to justice for a party with limited financial means is by far the most important factor. Kwikbolt’s resources were markedly inferior to Airbus’s, and transfer would expose it to substantially greater litigation costs and serious financial strain. Airbus’s proposed continuation of IPEC costs caps did not remove the likely increase in Kwikbolt’s own costs.
5. The value of the claim, including the financial impact of a possible injunction, remained relevant but was not determinative. A high-value injunction did not prevent an impecunious claimant from enforcing its rights in IPEC. Airbus’s evidence concerning the cost and commercial consequences of changing fasteners was better assessed after trial, when the trial judge would also determine any appropriate relief.
6. Potentially disproportionate harm from an injunction did not require transfer. The same injunction could be granted by the Patents Court, and transfer would be justified on that basis only if there were a realistic risk that Airbus’s ability to present its defence would be significantly limited in IPEC. No such risk existed.

Not stated in the judgment. Airbus sought permission to appeal after the application was refused, but the judgment records no appellate decision.