Andrew Lykiardopoulos QC led the counsel team for the claimants, Advanced Bionics, in this successful application for expedition of a patent trial. The patent, held by the defendant, Med-El, is entitled ‘MRI-Safe Disk Magnet for Implants’ and has particular application for cochlear implants. Advanced Bionics seeks to invalidate the patent and/or to establish that Advanced Bionics’ Hi Res 3D device does not infringe. Med-El had indicated an intention to bring a counterclaim for infringement.
The court considered the effect of the ‘injunction gap’ created in Germany due to the German courts’ practice of deciding patent infringement separate from patent validity: an injunction concerning the Hi Res 3D device in Germany would be likely to have a detrimental effect in the UK market, but the validity of the patent on which the injunction is based could not be challenged except in separate, much later proceedings. Med-El had launched an infringement action in the Landgericht Mannheim, which has set the hearing of the infringement claim for January 2022 with judgment likely to be issued around the end of February 2022. A potential injunction gap could last from then until the conclusion of a nullity action in the EPO which could only be commenced in June 2022 at the very earliest and was likely to last over a year.
Mr Justice Mellor observed as a starting point that the position in the German market is a matter for the German courts. However, word would go round the audiology industry very quickly if Advanced Bionics’ product came off the market in Germany and an injunction in Germany would be highly likely to cause significant damage to Advanced Bionics and to the prospects of its device recovering the market share that Advanced Bionics had had before the COVID-19 pandemic. This was a good reason for expedition.
Mr Justice Mellor was unconvinced by Med-El’s argument that the action requires a 5-7 day category 4 trial, in part because of the possibility of complex vector analysis of magnetic fields and the need for experiments to be conducted. Mellor J held that the patent is expressed at a level of detail far removed from the need for such analysis.
The trial was directed to be listed as a 4 day category 3 trial in the Shorter Trials Scheme in February or March 2022. Such a timetable would cause no prejudice to Med-El as it was very familiar with the Advanced Bionics device, having filed a 70-page infringement brief in Germany.