Gary Moss looks at how defence can set a rapid agenda.

Gary Moss is a partner at Taylor Joynson Garrett.

The recent Patents Court case of SBM v Brown Brothers and Company and Vickers (1996) was notable for two reasons.

First, less than six months elapsed between the issuing of the writ and the trial. Second, in acceding to the defendants' request for an order for speedy trial, the case also demonstrated the commercial awareness of both Patents Court judges and how defendants can resolve unanswered questions speedily.

SBM commenced action against Brown Brothers in June this year alleging infringement of two of its patents. The subject of the action was fluid swivels used in off-shore oil production vessels. Each swivel sells for several million pounds. Word of SBM's action spread to the marketplace, causing confusion and uncertainty among potential customers.

At the end of July, Brown Brothers accordingly applied for an expedited hearing. A trial date was set for mid-November and it was anticipated that the case would run for five to eight days. This left the parties with less than four months to prepare a full patent action.

The defendants' decision to proceed speedily paid off. On the fourth day of the trial, following the close of its evidence, SBM discontinued the action. As a result both patents were revoked and costs were awarded against SBM.

Had the case proceeded at its normal pace it would have taken about 12 to 18 months to come to trial. In that time customers may have been reluctant to order the defendants' products.

Since the lead time for the manufacture of a swivel is about nine months, the plaintiff could have gained an undeserved monopoly of approximately 18 months. Indeed, when granting the order for speedy trial, one of the concerns expressed by Mr Justice Laddie was that, without such an order, the plaintiff would effectively secure all the advantages of an interlocutory injunction without the need to submit to a cross-undertaking in damages.

The fact that the Patents Court was prepared to co-operate in bringing the trial on so quickly shows just how alert the judges are to the possibility of patentees obtaining unfair commercial advantages of this type simply by the litigation becoming generally known in the marketplace.

The case also highlights how flexible and adaptable the UK litigation system can be. We hear many criticisms about the length of time taken for cases to reach the court. However, here is an action which shows that, when required, cases can be brought on very quickly using existing rules and procedures but without sacrificing any of the advantages the UK system has to offer. Lord Woolf please note!