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12.10.
The cost to the applicant of obtaining a search report may be seen as a disadvantage. However, cost is not a strong objection. It is possible to obtain an adequate search report from the UK Patent Office for between £400 and £500, from commercial searching agencies for about £1,000 and from the EPO for about £2,000. In fact, the cost involved may have the advantage of deterring frivolous applications. In any event, the cost of a search report would have been met already where the applicant needed to obtain one for applications in other jurisdictions.
12.11.
The time taken to obtain a search report is unlikely to be a significant disadvantage as it varies from only about fourteen days for a search conducted by the commercial searching agencies to between two to four months for a search in the EPO.
12.12.
It must be recognised that the value of some searches is dubious. However, many patent offices and institutions are known to conduct satisfactory searches. It would be possible to prescribe in the relevant legislation the sources of the required searches.
Non-examination system with search and additional safeguards
12.13.
Although the requirement for the applicant for the petty patent to obtain and file a search report reduces the risks of abuse inherent in a non-registration system to some extent, we consider that additional safeguards are possible. These could include the following.
Speedy trial
12.14.
The current practice in interlocutory applications is that generally the Court will order, or the defendant will seek, a speedy trial as part of the defence to the application. Owing to the short term nature of petty patents, we consider that there should be a general assumption that litigation based upon them should be conducted quickly. Where an interlocutory injunction is granted, the defendant should have the right to a speedy trial. If an injunction is refused, the plaintiff should also have the right to a speedy trial.
Imposition of onus of proof on the plaintiff
12.15.
There is a presumption in patent proceedings that a patent is valid, a presumption which is rational where all the requirements for patentability have been examined prior to grant. In proceedings concerning a patent the onus of proof lies on the person challenging the validity of the patent. However, in proceedings regarding a petty patent that has not been previously examined for patentability, the onus of proof could be reversed; it would then be for the patentee to show that his petty patent is valid.
Security from the plaintiff
12.16.
Courts commonly impose a condition on the grant of an interlocutory injunction requiring the plaintiff to give an undertaking to pay damages to the defendant if the court decides eventually that the injunction should not have been granted. In such circumstances the court can also order that the plaintiff pay a sum into court or lodge a bond
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