The High Court refused Timothy Cremin and Oxvyvent Limited’s application for damages after finding that they had proved no loss from the patent infringement established in an earlier judgment. It awarded the plaintiffs half of their actual out-of-pocket expenses against the first three defendants, with the amount to be taxed if the parties could not agree.
The supplemental judgment, delivered by Mr Justice Roderick Murphy on 26 April 2012, dealt with damages and costs after the court’s 13 March 2012 finding that the defendants’ application infringed claims 1 and 5 of the plaintiffs’ patent.
Cremin told the court that he had suffered loss that was virtually impossible to quantify and sought exemplary damages. The judge said the plaintiffs had provided no evidence of loss despite being asked to do so. Without evidence, the court had no basis to quantify damages, and it refused the application. It also said exemplary damages did not arise for consideration.
The court said the plaintiffs had not sought an account of the defendants’ profits. Because it made no award of damages, the judge concluded they could not instead seek an account of profits for the same infringement.
On costs, the court said no evidence had been given of costs incurred. It reviewed legal principles on costs for people representing themselves, including that private expenditure on their own time and effort is not recoverable, while out-of-pocket expenses may be. The court allowed half of the plaintiffs’ out-of-pocket expenses actually incurred, including payments to solicitors while they were on record. Those expenses are to be taxed if agreement is not reached.
The judge cited the “stop-go” course of the proceedings from 2004 to 2012 and said the litigation had been unduly protracted. He also noted that a more appropriate route for pursuing infringement proceedings was available under Article 100 of the European Patent Convention, and that no opposition to the defendants’ application had been notified to the European Patent Office when the plaintiffs’ patent agent wrote to the defendants in August 2002.
The judgment said no evidence had been offered in support of the plaintiffs’ conspiracy claim or Cremin’s allegation of “devious means”; the court made no findings on those matters. It also recorded that Declan Keane’s application for dismissal had been granted without a request for costs. The court found Cremin had not satisfied it that Paul Murphy was notified of the hearing, describing the lack of notification as a critical oversight.
The costs order was made against the first, second and third named defendants. The judgment did not award damages or make findings on the unsupported conspiracy and “devious means” allegations.