Edwards Lifesciences Corporation & Anor v Meril GMBH & Anor

In multi-patent litigation, the court should seek to identify an overall successful party for the purpose of making a fair costs order, where the proceedings as a whole permit that assessment. The result on each patent remains important and must be reflected through appropriate deductions or adjustments. An overall winner cannot always be identified; separate costs assessments may then be appropriate for distinct patents or issues. The assessment is concerned with the fair allocation of litigation costs, rather than a general declaration of who won.

Following an earlier patent judgment in the same proceedings, the court determined the basis and apportionment of costs. Two patents had been tried together. The defendants succeeded in invalidating the '753 patent, while the claimants succeeded in establishing infringement of valid claims of the '929 patent, subject to issues on which the defendants also succeeded.

The central question was whether the court should treat the results on the two patents separately or identify an overall successful party before making deductions for the issues on which each side had failed.

1. Overall approach. The court held that, in patent litigation involving more than one patent, it should seek to identify an overall winner on the ordinary costs principles where that can fairly be done. The assessment is a tool for determining a fair costs order and is not a public-relations exercise about who won the case (paras [4]-[5], [12]-[15]).
2. Separate outcomes remain material. Identifying an overall winner does not erase the result on individual patents. The successful party’s costs may be reduced substantially to reflect issues or patents on which it failed. The court may also make a further deduction by reference to the other party’s costs on issues on which that party succeeded (paras [15], [23]-[32]).
3. Application. The current product could not be sold in the jurisdiction in its existing form because it infringed the claimants’ valid rights under the '929 patent. The claimants were therefore the overall successful party, although the defendants’ success in invalidating the '753 patent required a significant deduction. The court also allowed a deduction for the defendants’ limited success on the '929 patent (paras [14]-[15], [23]-[30]).
4. Costs order. The court allocated 45% of the claimants’ costs to the '753 patent and 55% to the '929 patent. It deducted 10% of the '929 costs, half of the '753 costs, and a further sum representing half of the defendants’ costs of validity issues on the '753 patent. The claimants were awarded 54% of their assessed costs of the action, payable by the defendants (paras [19]-[33]).