In a recent judgement, Mr Justice Carr decided that the same cost recovery principles which apply to other types of litigation should also apply to patent cases.

The ruling relates to a recent case between the pharmaceutical companies Cubist Pharmaceuticals LLC and Hospira UK Ltd. In this case, it was decided that where costs can be “suitably circumscribable” to specific issues that an overall winner lost in a dispute, such costs (subject to certain circumstances) can now be recovered by the unsuccessful party.

Mr Justice Carr said: “Where there is a discrete issue, which required substantial expenditure of costs, it may be just in all the circumstances to order payment of costs” and that “there must be something which makes it appropriate and just to order not only that the successful party does not recover his costs, but also that it should pay the costs of the relevant issue”.

Ultimately, Mr Justice Carr ruled that “the approach to awards of costs in patent cases” does not differ “from that adopted in other types of litigation” and that “parties should be encouraged only to pursue their best points and to be aware of the cost implications of failing to do so”.