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Sunday, 28 October 2012

Flying Scotsman? No, it's an IP litigant ...

More puff power for pursuers ...
From the IPKat's friend Susan Sneddon (Maclay Murray & Spens) comes some significant news from Scotland -- if you are thinking of litigating an IP dispute in that jurisdiction, that is.  She writes:
"The procedural rules which govern intellectual property actions in the Scottish Court of Session are changing with effect from Monday 19 November. The grandly-titled Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2012 (which you can read in full here) makes some fairly significant changes to Chapter 55 (IP Rules) of the Rules of the Court of Session 1994.  The key changes to the Chapter 55 Rules are as follows:
• There will now be a compulsory “preliminary hearing” two weeks after defences have been filed. The judge will have discretion to make a wide array of procedural orders at such hearings (new Rule 55.2E);

• Passing-off cases are now included in the list of cases defined as IP actions (Rule 55.1);

• If the defender wishes to bring a counterclaim, it will have to apply to the court by notice before a counterclaim can proceed so the court can make appropriate procedural orders in respect of it. Other changes to the format of pleadings have been made (new Rule 55.2D);

• The procedure in the case shall be such as the judge will direct, thus allowing for greater procedural flexibility (new Rule 55.2C) and

• The rules governing procedural hearings (case management hearings which take place at a later stage in the case) have been revised (Rule 55.3).
In our view, the most significant change is the introduction of the preliminary hearing. Previously in Scottish IP cases, it was possible that the first case management hearing in the action would not take place until three months or more after defences had been filed. In the intervening period, the parties would be free to revise their pleadings as they saw fit. Only after pleadings were "closed" would the case come before a judge.

The court has been trialing a system of optional preliminary hearings in IP actions for the last few months. Our firm’s experience, during this trial period, has been that having an early hearing before an IP judge really helps to bring into focus the key issues in dispute between the parties. It thus tends to result in an expedited and focused timetable being put in place, which results in cases being decided more quickly and cost-effectively. As such, we think the introduction of these new rules is good news for IP litigants in Scotland".
Flying Scotsman here
Speedy Scotsman here

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