DRAFT HIGH COURT OF DELHI RULES GOVERNING PATENT SUITS, 2020: A STEP TOWARDS SIMPLIFYING PATENT LIT

INTRODUCTION

In an attempt to streamline patent litigation, the High Court of Delhi has notified Draft Rules (The High Court of Delhi Rules Governing Patent Suits) governing patent suits on October 09, 2020, seeking comments/suggestions from the stakeholders. The said Rules are aimed at removing complexities revolving around patent litigation in India and pertain to the nuances revolving around the several technical and procedural aspects that are required to be compiled with at various stages of a patent suit. One of the major highlights of the said Rules are that while they are aimed at maintaining harmony with the Delhi High Court (Original Side) Rules, 2018, they shall govern the procedure for adjudication of all patent suits and propose to prevail over the Delhi High Court (Original Side) Rules, 2018, in case of any inconsistency.

KEY HIGHLIGHTS

Apart from laying out the nature, scope and content of pleadings involved in a typical patent suit, some of the key highlights of the draft Rules are as follows:

Case management hearings: The said Rules propose the holding of three case management hearings, in order to achieve a timely and qualitative resolution of a dispute. A significant change in the concept of case management hearings is also supported by the inclusion of the concept of “hot tubbing” under the second case management hearing which essentially allows the Court to direct expert testimony on its own motion or on the application by a party. The main objective of “hot tubbing” is to curb the inherent bias and to correct any misinformation provided by the opposing experts that might be missed during a cross-examination, as evidence of two opposing experts are taken concurrently in a 'hot-tubbing'. This is in line with the amendment made to the Delhi High Court (Original Side) Rules in the year 2019 to include the contemporary concept of hot tubbing in the litigation procedure.

Constituting a panel of "Scientific Advisors" to assist Judges: In view of the intricacies revolving around patent litigation in India, the said Rules propose the appointment of a panel of Scientific Advisors, for assisting Judges in deciding patent suits. These advisors can belong to varied fields depending upon the nature of the dispute. Apart from the inclusion of scientific advisors, in case the Court believes that the parties are in a position to settle the dispute amicably, it may appoint a qualified mediator or panel of mediators including technical experts to explore amicable resolution of the dispute. The earlier pre-requisite of consent of the parties is not required under the proposed Rules, once the court is of the opinion that an amicable resolution needs to be explored.

Confidentiality Club: Recognizing the stakes as well as the value of disclosures in patent suits, the said Rules allow the Court to constitute a confidentiality club, for preservation of confidential information exchanged between the parties, including documents.

Recordal and preservation of evidence: The said Rules further propose the preservation of any evidence involving any audio or video recordings in the electronic record of the case, with a separate hash value and the same shall be kept in a format that is not editable. The aforesaid measure prevents any tampering of data at a belated stage of the dispute. Moreover, the said Rules also allow for recordal of evidence through video conferencing, to prevent unnecessary delays in dispute adjudication.

The draft Rules are currently open to comments/ suggestions for a period of 4 weeks and can be accessed here.