Tom Moody-Stuart KC appeared for the claimants (“DISH”) and Isabel Jamal appeared as junior counsel for the defendants (“Aylo”) in Aylo’s application for expedition of a trial, alternatively to list the trial in the earliest possible window according to the Patents Court Practice Direction. The proceedings related to two of DISH’s patents for adaptive bit-rate streaming technology, one of which was alleged by DISH to be infringed by Aylo’s websites, and the other of which was the subject of a revocation claim by Aylo.
Aylo sought expedition to avoid the common problem of an “injunction gap” in parallel German proceedings, whereby injunctive relief is granted by the Regional Court (which only considers infringement) before the Federal Court has ruled on validity.
Meade J reviewed the authorities relevant to expedition, and held that there was a threshold requirement for real urgency, before the other relevant factors from the case law (in particular, Gore v Geox) could be considered. He held that the risk of an injunction in Germany, coupled with the impact this would have on Aylo’s Europe-wide business, including the UK, marginally cleared this threshold. Nevertheless, after considering the other factors, the judge declined to list the trial in November or December 2024, as requested by Aylo. Though he held that DISH would not be prejudiced in its trial preparation were the case to be expedited, the impact on other court users and the organisation of the Patents Court list in the autumn term would be potentially severe.