A defendant sued in the Patents Court is entitled to apply to have the case transferred to IPEC and vice versa.169 If the parties agree that the case should be transferred, it still requires the approval of a judge in the court in which the case is currently listed, but it is likely to be granted. If there is no agreement, an application to transfer must be made. This should be done, at the latest, at the CMC.
The following factors are relevant in determining whether a claim should be transferred into or out of IPEC:
- the financial resources of the parties;
- the overall complexity of the claim;
- the nature of the evidence; and
- the value of the claim.170