Advanced Bionics AG v MED-EL Elektromedizinische Gerate [2021] EWHC 2415 (Pat)
An application for expedition of proceedings to revoke a patent and for a declaration of non-infringement. The proceedings were commenced in the Shorter Trials Scheme (STS).
The proceedings concern cochlear implants for the profoundly deaf. The parties are two of the three major competitors in the market. The claimants had opposed the defendant’s patent at the EPO. The Opposition Division having rejected the opposition, the defendant sued the claimants for infringement in Mannheim. Trial there is set for January 2022. The claimants commenced these proceedings to obtain a finding of invalidity in the UK before that trial with a view to using the finding to influence the German court to stay its proceedings. It became clear following the evidence that the court could not accommodate a sufficiently early trial in the UK. The claimants accordingly sought an early trial to minimise the period between the possible grant of an injunction in Germany and a finding of invalidity or non-infringement in the UK to protect their market in the UK and elsewhere.
The court decided that a trial in February 2022 was appropriate and ordered that the trial be fixed then. It further ordered that there be a CMC following pleadings to consider further directions including whether it is appropriate for the proceedings to continue in the STS.
Michael Silverleaf QC represented the Defendant, MED-EL.