Charlotte May QC appeared for the defendant in this strike out application. The claimant sought to revoke three patents held by the defendant and the defendant counterclaimed for infringement on a quia timet basis. When the defendant requested disclosure in relation to the allegedly infringing product, the claimant applied to strike out the infringement claim on the ground that it had no real prospect of successfully showing that the claimant threatened or intended to commit an infringing act, or on an alternative abuse of process ground. The claimant also submitted that if the infringement claim was not struck out, it should be stayed for reasons relating to competition law.
The court rejected arguments that quia timet infringement actions required a risk of grave irreparable harm or an imminent threat, or that pleading a market authorisation was or should be a prerequisite for such an action. The court therefore held that the defendant’s pleaded case had a real prospect of success at trial. The claim was also held to not be an abuse of process. The court further held that disclosure would not be contrary to Article 101 TFEU. As such, the application to strike out or stay the infringement claim was dismissed.