An International Guide to
Patent Case Management for Judges

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9.6.14 Trial from the judge’s point of view

The listing of cases and allocation of judges to a case are judicial functions. The day-to-day task of listing cases for hearing and managing the court’s diary is undertaken by a listing officer operating under delegated authority from the judge overseeing the court. In the event of a dispute, listing decisions will be made by a judge. Day-to-day allocation decisions are made by the listing office under the supervision of the relevant leadership judge: in the Patents Court, this is the Judge in Charge of the Patents Court, in consultation with the Chancellor of the High Court.

The court’s lists are managed well over a year in advance, and, for cases that require very substantial amounts of court time, the calendar can be managed two or even three years in advance. Unless a case is docketed to an individual judge, the allocation of a judge to hear a trial will not generally take place until one or two days before the scheduled start of the hearing, when the judge needs to starts their preparation. This is to maintain flexibility in listing and efficient use of judicial resources. The technical difficulty rating system (described above in Section is used to assist in judicial allocation.

In cases with a pre-trial review, the court tries to ensure that the judge conducting the review will be the trial judge, in which case allocation happens a few weeks before trial. For trials in the Patents Court, which typically take four to eight working days to be heard, the time available to the judge for preparatory reading will be the one or two working days before the start of the hearing.

In patents cases, the pre-trial review and the preparatory reading are opportunities for the judge to start to become familiar with the relevant technology. The experts’ written reports will contain explanations of the technology, which are aimed at educating the court. During the trial process itself, the parties and the experts will explain the technology to the judge, and the judge is able to ask questions and clarify their understanding.

The hearing itself is conducted in public. Transparency and open justice are of paramount importance. The court can and will sit for periods in private where necessary, as discussed above in Section 9.6.10. Normally, the court sits for about five hours per day, with the rest of the working day spent on preparation and on judgment writing. The sitting times are flexible to accommodate international witnesses, but, subject to that, the normal sitting times are from 10 a.m. or 10.30 a.m. until 1 p.m., and 2 p.m. until 4.15 p.m. or 4.30 p.m.

The hearings are recorded by the court. The court’s recording can be transcribed after the event, but, generally, the parties will pay a private firm of transcribers to make a contemporaneous transcript of the hearing.

At the end of a hearing, if the matter is short, such as for a case management hearing, the judge may give an oral judgment immediately. These ex tempore judgments are recorded, and a transcript can be produced later if needed. These oral judgments will only be transcribed if someone (a party or member of the public) asks for them. For more substantial cases, such as patent trials, judgment will be reserved. The judge will produce a written judgment.

First-instance judges will generally prepare the written judgment alone. There is no full-scale system of US-style law clerks to assist judges at first instance, although there is a Judicial Assistants Scheme for the High Court, which some judges use.

Judgments are quite lengthy. They address the applicable law, reasoning out any conclusions on disputed aspects. They will make any relevant findings of primary fact, summarizing the evidence called upon on those issues and giving reasons for the findings. In general, the judgment will address major alternative aspects of a case. Obviousness will generally always be considered even if, for example, the patent is found to lack novelty. This is because, unlike any appellate court, the trial judge will have had the benefit of hearing the expert witnesses. Both validity and infringement will usually be addressed.