This chapter is a written report of a presentation given by the author in October 2018 at the University of Erlangen conference on ‘Themes and Controversies in EU IP Remedies’. The chapter takes a different approach to the many other excellent papers that were presented at the conference. This difference in approach reflects the author's background as a barrister practising in IP (intellectual property) litigation in the UK. What follows here arises from what the author has observed in over 10 years of litigation experience in intellectual property – not only in the UK, but also in the US and other EU jurisdictions. Whilst this chapter is addressed primarily from the viewpoint of someone practising in England, it must be made it clear that this is essentially an anecdotal view, although, it reflects the views of many practitioners the author has spoken to in every major jurisdiction where IP rights are litigated. It is therefore certainly not an English only problem. It is to be hoped that this discussion will encourage further research into this area.
In summary, the author's view is that the actual mechanism of enforcing intellectual property rights through litigation in the English courts can sometimes, be economically inefficient when viewed in isolation – i.e. the cost of litigating a right can outweigh the value of the right in that one off case. As many IP rights exist because of an economic justification for their existence, their very raison d'etre is challenged if the ultimate mechanism for their enforcement by way of litigation is economically inefficient. Put simply, is the very existence of IP rights being challenged if the court systems cannot make enforcing them economically efficient? This issue, and issues arising in relation to this, are addressed in this chapter.
This discussion identifies a problem in certain cases. Different IP rights are afflicted by this potential problem to differing degrees. This chapter serves to raise the issue and start a debate, and therefore any generalisations made will, invariably, not be true of all cases or all IP rights.
This chapter comprises four sections. Section 1 contains a brief overview of the principles relating to the calculation of financial remedies and injunctive relief for IP rights under English Law.