I have to say that I am rather disappointed by the decision of the US Court of Appeals for the Federal Circuit in Voda v Cordis Corp. (USCA Fed. Circuit 1 Feb 2007). It is ironic that while the US federal government sends its soldiers where they are not wanted, its courts appear to be singularly reluctant to entertain actions even between Americans over foreign intellectual property rights.
In Voda the Court of Appeals allowed an appeal by the defendant against the District Court’s decision to permit the plaintiff (claimant) to amend his claim to allege infringement of his foreign as well as US patents (see Voda v. Cordis Corp., No. 03-1512, slip op. at 2 (W.D. Okla. Aug. 2, 2004). The decision was not unanimous. There was a powerful dissenting judgment by Circuit Judge Newman. But the majority took the view that there was no jurisdiction to entertain such litigation and, even if there was, the court should not exercise it.
This decision contrasts with the stance of our own Court of Appeal in Celltech Chiroscience Ltd. v Medimmune Inc. which did not shrink from determining difficult such alien concepts as the doctrine of equivalents and file wrapper estoppel. Nor did it criticize Sir Robin Jacob for deciding those issues as though he were a US district judge (see Celltech Chiroscience Ltd. v Medimmune Inc  EWHC 2167 (Patents) (28 Oct 2002) though it disagreed with his conclusion. Our courts have moved a very long way from British South Africa Company v. Companhia de Moçambique  AC 602 (see R Griggs Group Ltd and others v Evans and Others (No 2)  EWHC 1088 (Ch) (12 May 2004) though there are signs that the tide may be turning (see the decision of the European Court of Justice in C-4/03, Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG,  EUECJ C-4/03 (13 July 2006) (aka GAT v LuK).
The reason I rather regret the decision in Voda is that US courts are rather more accessible than ours. True, the costs of litigating in the USA are at least as high as here but then costs in the USA do not usually follow the event and there are at least a few US intellectual property lawyers who are prepared to accept instructions on a contingency fee. Also, the doctrine of equivalents appears to make life slightly easier for claimants and juries set damages. I am aware of at least one UK SME that has benefited very substantially from access to the American courts in a way that it never could here.
As I mentioned yesterday in my post on Sir Robin Jacob’s talk to the Bar there appears to be a lot of momentum for a European patent litigation agreement. Such an agreement would be open to states outside the EC. If Switzerland or Turkey could sign up, why not countries outside Europe? The impetus for TRIPs is that global markets need a global IP system. In fact TRIPs actually does a bit more in that it harmonizes to a great extent the substantive law relating to intellectual property. If powerful countries like the USA can swallow harmonization of substantive law why not trans-border or even supra-national jurisdiction. Globalization isn’t just for Americans.