Wragge Lawrence Graham & Co

UK 200 2013 position: 25

When to stay and when to go? Court of Appeal recasts Glaxo guidelines in HTC appeal

The Court of Appeal has given judgment in the ‘stay’ application in the long-running patent dispute between IPCom and HTC. HTC had appealed the High Court’s refusal to stay the proceedings, and the appeal concerned the circumstances in which it is appropriate for an English court considering combined patent infringement and revocation proceedings to grant a stay pending the outcome of co-pending opposition proceedings in the European Patent Office (EPO).

The decision has been eagerly awaited as the first decision on the point since the Supreme Court’s suggestion in its Virgin v Zodiac judgment that the lower courts must revisit the Glaxo guidelines for when UK actions should be stayed pending the outcome of EPO opposition proceedings.

In dismissing the appeal, the Court of Appeal has taken up the mantle and recast the Glaxo guidelines, rewriting some points and adding others. The previous nine guidelines are replaced with 13. Notably, the reworked guidelines make clear that, if there are no other factors, a stay of the national proceedings is the default option — and it is for the party resisting the stay to show why it should not be granted. Parties who oppose a stay but still want to seek damages should be prepared to undertake to repay those damages on resolution of the EPO proceedings…

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