Patents: Cross-Border Jurisdiction

Having lost a threats action in England, the defendants in Cintec International Ltd v John Humphries Parkes (t/a Dell Explosives) and another [2003] EWHC 2328 (Ch) (2 Oct 2003) have tried their luck in the Court of Session (see Frost and Another v. Cintec International Ltd [2005] ScotCS CSOH_119 (9 Sep 2005)).

Though litigants in person, they might have been expected to have fared better there. They certainly did not lack experience. Laddie J noted that one of them, Mr. Frost, had appeared 127 times in court, mainly in Scotland, although he had no legal education or qualification. His lordship added that that clearly had led him to acquire considerable self confidence as an advocate. Mr Frost did not appear to think much of our legal system. As the judge observed:

“time after time he suggested that Scottish law and procedure is very different. Some of his claims on this front I found surprising. For example, during one of his repeated complaints about the fact that this case had come on rapidly as a speedy trial, he intimated that to do so breached his human rights and that in Scotland it was not possible to order a speedy trial when a litigant in person was involved.”

This complaint was particularly rich in that it was made by someone who had actually sought an early trial date.

In Edinburgh they fell at the first hurdle. Cintec was domiciled in Wales and Mr Frost had not pleaded any basis for jurisdiction in Scotland. Cintec applied to dismiss the claim on that point alone. Absent a Scottish domicile, a company can be sued in Scotland only if it can be brought within one of the exceptions in Sched 4. Lord McEwan considered all of them but none would fit.

It’s a pity this case will not go further. Not many patent cases seem to come before the Scottish courts. Alba Diagnostics is the last one that I can think of and that went on much longer than it should have.


About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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