‘1. The discretion, which is very wide indeed, should be exercised to achieve the balance of justice between the parties having regard to all the relevant circumstances of the particular case. 2. The discretion is of the Patents Court, not of the Court of Appeal. The Court of Appeal would not be justified in interfering with a first instance decision that accords with legal principle and has been reached by taking into account all the relevant, and only the relevant, circumstances. 3. Although neither the EPC nor the 1977 Act contains express provisions relating to automatic or discretionary stay of proceedings in national courts, they provide the context and condition the exercise of the discretion. 4. It should thus be remembered that the possibility of concurrent proceedings contesting the validity of a patent granted by the EPO is inherent in the system established by the EPC. It should also be remembered that national courts exercise exclusive jurisdiction on infringement issues. 5. If there are no other factors, a stay of the national proceedings is the default option. There is no purpose in pursuing two sets of proceedings simply because the Convention allows for it. 6. It is for the party resisting the grant of the stay to show why it should not be granted. Ultimately it is a question of where the balance of justice lies. 7. One important factor affecting the exercise of the discretion is the extent to which refusal of a stay will irrevocably deprive a party of any part of the benefit which the concurrent jurisdiction of the EPO and the national court is intended to confer. Thus, if allowing the national court to proceed might allow the patentee to obtain monetary compensation which is not repayable if the patent is subsequently revoked, this would be a weighty factor in favour of the grant of a stay. It may, however, be possible to mitigate the effect of this factor by the offer of suitable undertakings to repay. 8. The Patents Court judge is entitled to refuse a stay of the national proceedings where the evidence is that some commercial certainty would be achieved at a considerably earlier date in the case of the UK proceedings than in the EPO. It is true that it will not be possible to attain certainty everywhere until the EPO proceedings are finally resolved, but some certainty, sooner rather than later, and somewhere, such as in the UK, rather than nowhere, is, in general, preferable to continuing uncertainty everywhere. 9. It is permissible to take account of the fact that resolution of the national proceedings, whilst not finally resolving everything, may, by deciding some important issues, promote settlement. 10. An important factor affecting the discretion will be the length of time that it will take for the respective proceedings in the national court and in the EPO to reach a conclusion. This is not an independent factor, but needs to be considered in conjunction with the prejudice which any party will suffer from the delay, and lack of certainty, and what the national proceedings can achieve in terms of certainty. 11. The public interest in dispelling the uncertainty surrounding the validity of monopoly rights conferred by the grant of a patent is also a factor to be considered. 12. In weighing the balance it is material to take into account the risk of wasted costs, but this factor will normally be outweighed by commercial factors concerned with early resolution. 13. The hearing of an application for a stay is not to become a mini-trial of the various factors affecting its grant or refusal. The parties’ assertions need to be examined critically, but at a relatively high level of generality.’
‘(i) to clear the way for the launch of the glo system (with two inductor coils) in the UK in the near future, and (ii) to obtain a reasoned revocation decision from the English Patents Court to assist other European courts, not only in respect of PI proceedings in various EPC jurisdictions (including those that may be brought by [PMI] in the future), but also in main infringement proceedings on the merits that follow on from the extant PI proceedings, particularly where patent validity is not considered given the bifurcated nature of patent proceedings. This is particularly in view of [PMI]’s recent (January 2022) use of ex parte PI proceedings in the Czech Republic, Romania and Poland in relation to glo Hyper and glo Hyper+ (with two inductor coils).’
‘Mr Svensson has informed me that he cannot predict the outcome of future quarterly meetings, which review the UK opportunity and market landscape and discuss BAT’s potential THP launch plans in the UK, save that these such plans are considered in earnest in each meeting. Having seen the ongoing commercial and legal uncertainty brought about by [PMI]’s PI requests on28 January 2022 using EP 323 in the Czech Republic, Romania and Poland, and the significant time and resources that have had to be diverted to deal with the ongoing litigation and appeals, BAT’s and Mr Svensson’s minds have been focussed on what would happen in the UK should BAT decide to give the go ahead for a UK launch of the induction heating glo system. Uncertainty regarding the ability to commercialise the glo system in the UK adds a degree of complexity in making such decisions at the quarterly meetings. This is particularly the case given that the UK is BAT’s home jurisdiction. BAT and Mr Svensson are keen for the legal hurdles, particularly in respect of EP 323, to be cleared in advance of a UK launch, which could potentially be as early as mid-2023. BAT and Mr Svensson do not wish for the sort of uncertainties caused by [PMI] presently in the Czech Republic, Romania and Poland to adversely affect a UK launch and BAT’s eventual THP market in the UK.’