Illumina Cambridge Ltd v. Mgi Tech Co., Ltd and Others

HCIP 47/2020

[2021] HKCFI 3264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INTELLECTUAL PROPERTY PROCEEDINGS NO. 47 OF 2020

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Before:  Hon Lok J in Chambers

Date of Hearing: 24 & 25 February 2021

Date of Decision:  25 February 2021

Date of Reasons for Decision: 1 November 2021

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REASONS FOR DECISION

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1.In this action, the Plaintiff claims against the Defendants for infringing the Plaintiff’s Hong Kong Standard Patent No. 1253509, registered in Hong Kong on 7 August 2020 (“the HK Patent”).

2.On 14 August 2020, the Plaintiff took out a summons applying for interlocutory reliefs, including an interlocutory injunction, against the Defendants pending the trial of the action (“the Summons”).

3.The Summons was first heard before myself on 20 August 2020.  Directions were given to the parties to file affidavit evidence.  The Summons was adjourned to 24 February 2021 for substantive argument.  In addition, a direction hearing was fixed on 16 September 2020 to deal with the issue of interim measures pending the determination of the Summons.

4.In the hearing on 16 September 2020, the Defendants gave a list of interim undertakings in relation to the “Subject Sequencers”, “Subject Kits” and “Subject Services”^[1] (“the Undertakings”), as a result of which the arguments have substantially narrowed.

5.In gist, under the Undertakings (which were given until judgment):

(i)  the 2^nd and 3^rd Defendant may sell or supply the Subject Sequencers to: (i) their “Existing HK Customers”^[2] for the purpose of replacement or (with the Plaintiff’s consent or the court’s approval) increasing capacity; and (ii) the 5^th and 6^th Defendants for the purpose of carrying out the Subject Services up to certain limits;

(ii)  the 2^nd, 3^rd, 5^th and 6^th Defendants may sell or supply the Subject Sequencers and the Subject Kits to their “Overseas Customers”^[3] for use outside Hong Kong, provided that if such unit(s) is to be imported for this purpose, they would only do so for transit and remain sealed in their containers; and

(iii)  the Defendants would procure: (a) the maintenance of full and proper existing records (dating back to 21 June 2019^[4]) in relation to the dealings in or with the Subject Sequencers, the Subject Kits and the conduct of the Subject Services; and (ii) the keeping of such records for such future dealings.

6.In this substantive hearing, the Plaintiff applies for the following:

(i)  the removal of the exception in the Undertakings (“the Transshipment Exception”) permitting the 2^nd, 3^rd, 5^th and 6^th Defendants to sell and supply the Subject Kits to the Overseas Customers by transit via Hong Kong;

(ii)  a disclosure order, in terms of §6 of the Summons, in respect of the names and addresses of the Defendants’ customers and suppliers of the Subject Kits and the Subject Sequencers which have been supplied in or through Hong Kong; and

(iii)  directions for a speedy trial.

7.In the substantive hearing, I agreed to lift the Transshipment Exception in so far as the new Overseas Customers are concerned. I also disallowed the disclosure application under §6 of the Summons (“the Disclosure Application”) and gave some directions for the setting down of the trial.  I now give my reasons.

Background

8.The Plaintiff and the Defendants (who are members of the “BGI Group”) are the two major players in the provision of genetics sequencing platforms.

9.BGI Group’s operations in Hong Kong started in 2010 with a focus on sequencing services.  By 2014, its staff had tripled from 50 to 140 people and occupied 3 floors of an industrial building in Tai Po, New Territories.

10.In terms of the Defendants’ respective roles in relation to Hong Kong as stated in their affirmations:

(i)  The 1^st Defendant was incorporated in the Mainland in 2016.  It focuses on research, manufacture and sales of DNA sequencing instruments, reagents and related products and is the manufacturer of the “MGI” brand of sequencers and sequencing kits.   Although the 1^st Defendant sells its products to other entities in the BGI Group, it has no external customers in Hong Kong.

(ii)  The 2^nd and 3^rd Defendants were respectively incorporated in Hong Kong in 2016 and 2019.  Their role is to sell DNA sequencers and sequencing kits manufactured by the 1^st Defendant to customers both in Hong Kong and overseas, and these include other BGI Group entities in Hong Kong.  The 2^nd Defendant started supplying the Subject Sequencers and the Subject Kits to Hong Kong customers (other than associated companies) in July 2018 and have since accumulated 7 such customers.  The 3^rd Defendant started doing the same from 2019 soon after its incorporation and has accumulated 8 customers.  These customers include local universities and health care institutions.

(iii)  &The 4^th Defendant was incorporated in 2008 and mainly serves to hold shares in companies within the BGI Group and provide common supporting facilities and personnel.  Save and except a supply of sequencers to a university in 2018, the 4^th Defendant has had no substantive business in Hong Kong.

(iv)  The 5^th and 6^th Defendants were respectively incorporated in 2012 and 2013 and mainly offer sequencing services in Hong Kong to users both from Hong Kong and overseas.  Since around September 2016, they started using MGI sequencers and sequencing kits to supply sequencing services.  The 5^th Defendant’s customers are mainly researchers from universities and institutes, while the 6^th Defendant mainly serves clinics, hospitals and medical examination centres.  They do however supply sequencers and sequencing kits manufactured by the 1^st Defendant to overseas customers for use abroad^[5], including other BGI Group entities.  Except for a single supply of a sequencer by the 6^th Defendant as part of a settlement of a dispute, the 5^th and 6^th Defendants do not supply these locally.

11.While the Subject Sequencers and the Subject Kits are manufactured by the BGI Group within the Mainland^[6], the vast majority of these products sold and supplied to the Overseas Customers by the 2^nd, 3^rd and 6^th Defendants were shipped by transiting through the Hong Kong airport and not shipped directly from the Mainland.

12.Accordingly, there are two logistics centres set up in Hong Kong:

(i)  one by the 2^nd and 3^rd Defendants in Kwai Chung of over 7,000 square feet and installed with refrigerators for storing the Subject Kits, which costs over HK$260,000 a month to operate; and

(ii)  another by the 6^th Defendant in Tai Po of several thousand square feet, also installed with refrigerators for the said purpose, which costs over HK$228,000 a month to operate.

13.The Defendants give the following reasons as to why the products destined for the Overseas Customers would need to transit through Hong Kong:

(i)  The 2^nd and 3^rd Defendants are obliged under some existing customer contracts to ship products by transit via Hong Kong, and around 30% of their Overseas Customers prefer to engage their own freight forwarders in Hong Kong and thus would not accept direct shipment from the Mainland.

(ii)  Many of the Overseas Customers are from countries without direct flights from Shenzhen and Wuhan (where BGI’s manufacturing bases are located) which are available in Hong Kong.

(iii)  Direct delivery from the Mainland to the Overseas Customers would result in lengthy delay, additional costs and greater safety risks:

(a)  compared to the Hong Kong airport which has streamlined and efficient customs and forwarding processes and favourable tariff policies, the Mainland airports are far more stringently regulated;

(b)  in particular, it is very difficult for parcels containing dry ice (which is needed for shipping the Subject Kits) to be shipped from the Mainland airports, either because of safety check requirements, or that the airlines do not prefer accepting parcels with dry ice;

(c)  compared to the Mainland, there are many more international cargo airlines stationed at the Hong Kong airport, with abundant and swift connections to major airports around the world at better prices and options, which offers better cargo safety.

14.It is the Defendants’ case that, for these reasons, approximately 90% of the 2^nd and 3^rd Defendants’ and the 6^th Defendant’s respective sales to the Overseas Customers from 2016-2020 (for the 6^th Defendant)[7] and 2018-2020 (for the 2^nd and 3^rd Defendants)[8] were shipped by one form of transit or another through the Hong Kong airport.  All these transshipment activities had been going on for at least 2 to 3 years before the Plaintiff’s application for the HK Patent was published on 21 June 2019 and before the HK Patent was granted on 7 August 2020.

The Transshipment Exception

15.The main issue in the substantive hearing is whether the relevant Defendants should be allowed to continue with the existing transshipment arrangements for the Subject Kits pending trial.

16.I do not need to repeat the well-established principles for the granting of interlocutory application as set out in the landmark decision of American Cyanamid Co v Ethicon^[9].

17.Due to the highly technical subject matters where the Defendants would dispute the validity and infringement of the HK Patent, the parties agree that there are serious issues to be tried in respect of the Plaintiff’s claim. Though the Plaintiff has succeeded in similar claims against some of the corporate entities under the BGI Group in a few jurisdictions, the parties agree that the court should not go into the merits of the Plaintiff’s claims for the purpose of the present O 29 application.  While the HK Patent was said to fall in the same “family of patents” as the subject of litigations abroad, none of these foreign litigations was based on the designated European patent of the HK Patent, namely EP 3363809 (“the EP Patent”).  The validity of the EP Patent is now under challenge before its granting authority, the European Patent Office.  Hence, the court has to proceed on the basis that either side may succeed in the trial of this action.

18.The enquiry should therefore focus on adequacy of damages and balance of convenience, i.e. “whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong”[10].

19.Where the perceived risk of damage is evenly balanced, the court should maintain the status quo as it existed prior to the issue of the writ.[11]   In my judgment, this is the approach that should be adopted by the court in the present case in doing the least injustice to the parties.  In the hearing, I allowed the relevant Defendants to maintain the existing transshipment arrangements for the Subject Kits through Hong Kong for the Existing Overseas Customers but not for the new ones.

20.The Plaintiff complains that they will suffer irreparable harm if the existing Transshipment Exception is not lifted:

(i)  Damages would not be adequate to compensate it for loss of sales to overseas customers if the Plaintiff succeeds after trial, as such loss would not be a one-off loss of business but a loss of long-term relationship with the overseas customers.

(ii)  The sale and supply of the Subject Sequencers and the Subject Kits to the Overseas Customers will cause irreversible price erosion on the Plaintiff’s products.  Even if an injunction is granted after trial, the Plaintiff will not be able to raise its prices back to the current sustainable levels without harming customer relationship and its goodwill, and that price erosion and consequential reduction in the Plaintiff’s revenue is likely to be permanent, as customers will be resistant to price increases having been given such discounts.

(iii)  The continuance of the transshipment arrangements will make the registration of the HK Patent a mockery.  It will affect the confidence and trust the Plaintiff’s customers have towards the Plaintiff, as they will start to query why the Plaintiff is unable to stop the Defendants from continuing with the transshipment arrangements.

(iv)  The continuance of the existing transshipment arrangements will significantly bolster the Defendants’ portfolio by enabling the Defendants to make reference to their existing network and services in Hong Kong to their customers, making it easier to sell their products to the Overseas Customers.

(v)  If the existing transshipment arrangement were to continue, it will cause irreparable reputational damage to the Plaintiff, as the Defendants can use Hong Kong to sell and supply the Subject Kits to Key Opinion Leaders (KOLs) around the world to the detriment of the Plaintiff’s reputation with unquantifiable loss.

21.On the other hand, the Defendants argue that they will suffer irreparable damage if the Transshipment Exception is lifted:

(i)  The prohibition of transshipment through Hong Kong would seriously disrupt the existing logistic arrangements for the shipment of the products to the Overseas Customers.

(ii)  This particular mode of transshipment has since become the most important route for the Defendants to sell and supply the Subject Sequencers and the Subject Kits to the Overseas Customers.  The Defendants have also generated goodwill and reputation by conducting business with their Overseas Customers in the aforesaid logistic arrangements.

(iii)  The Defendants’ damage by reason of lifting of the Transshipment Exception cannot simply be calculated with reference to the additional costs they would have to incur to ship the Subject Kits directly from the Mainland to overseas.  The Defendants would also suffer from loss of sales, loss of customers and even reputational loss.  Any damage suffered by the Defendants would be equally significant.

22.In my judgment, both sides will suffer some irreparable harm in the form of damage to reputation and loss of customers’ confidence either by the lifting or the non-lifting of the Transshipment Exception.  As perceived risk of damage is quite evenly balanced, the court should maintain the status quo as it existed prior to the issue of the writ.

23.The loss of revenues is very much a neutral factor, as both sides would have some difficulty in quantifying their losses in either case of the lifting or the non-lifting of the Transshipment Exception.  For the allegation of price erosion, I do not accept that the pharmaceutical product cases referred to in Terrell on the Law of Patent[12] are of much assistance here.  After all, they are related to pharmaceutical products which have a unique market on their own, and each case would have to be determined according to its own facts.   In any event, the loss of the Plaintiff caused by any reduction of prices are easily quantifiable given the circumstances of the present case.  Further, the HK Patent was only registered in Hong Kong in August 2020 and the price erosion, if any, had already occurred for a significant period of time.  Under such circumstances, allowing the Defendants to continue the transshipment arrangements with the Existing Overseas Customers would have very little impact on the price erosion, if any, complained by the Plaintiff.

24.The Plaintiff has also exaggerated the impact of the loss of customers’ confidence by the non-lifting of the Transshipment Exception in respect for the Existing Overseas Customers.  There are already interim measures imposed by the court or by way of undertakings to restrain the Defendants from expanding their business in and through Hong Kong pending trial.  If the Plaintiff’s customers are aware of these matters, they would not lose their confidence on the Plaintiff or the Hong Kong court simply because of the non-lifting of the Transshipment Exception.  After all, the question of liability has yet been determined by the Hong Kong court.

25.Further, it would not be fair to prohibit the Defendants to carry on the transshipment arrangements with the Existing Overseas Customers.  It is indisputable that the Defendants had been transshipping the Subject Sequencers and the Subject Kits to the Overseas Customers via Hong Kong since 2016, long before the publication of the application for the HK Patent and the grant of the HK Patent, and even long before the first infringement proceedings was commenced by the Plaintiff in overseas jurisdiction in March 2019.  There could not have been any issue of patent infringement in Hong Kong any time before August 2020.  I accept that the disruption of the transhipment arrangements, which have been engaged for some time, would seriously affect the logistics arrangements that the Defendants have made with the existing customers, and it is not too difficult to imagine that such disruption would adversely affect the reputation of the Defendants in the eyes of the Existing Overseas customers.

26.The Plaintiff submits that the Defendants can make alternative arrangements to ship the products from the Mainland to the Existing Overseas Customers, such as via the airports in Shenzhen and Wuhan which are well served by international cargo flights.  However, the court, at this stage, cannot ignore the reasons given by the Defendants for engaging the transhipment arrangements[13] and the alleged irreparable damage that may be suffered by them by changing the transshipment arrangements with the Existing Overseas Customers[14].  As there are no pre-existing shipment arrangements with the potential new Overseas Customers, the Defendants would have to negotiate with them to ship the products without going through Hong Kong.

27.It is always tempting for the parties to exaggerate the harm that may be caused to them by the granting or the non-granting of the interim relief.  However, I must emphasise that the alleged harm herein would have to be assessed by reference only to the transshipment arrangements. The HK Patent will expire in August 2023.  The Defendants have already undertaken not to expand the business of selling the Subject Sequencers and the Subject Kits to new customers in Hong Kong.  For the transshipment, I adopt the same status quo by allowing the Defendants to continue with their transshipment arrangements with the Existing Overseas Customers but not the new ones.  In my judgment, this would be the most appropriate way to maintain the status quo pending the final adjudication of the claim.

The Disclosure Application

28.Under §6 of the Summons, the Plaintiff asks the Defendants for disclosure of the suppliers of the Subject Sequencers and the Subject Kits and the lists of customers to whom they have supplied such products.

29.The courts have expressed the caution in making such kind of Norwich Pharmacal order at interlocutory stage on a number of occasions.

30.In Sega Enterprises Ltd v Alca Electronics[15], the plaintiff sought an order compelling the defendant to provide information as to its customers to whom the defendant had supplied machines infringing the plaintiff’s copyright.

31.Refusing the plaintiff’s request, the English Court of Appeal cautioned against being too ready to order discovery and reiterated the guiding principle, that had been followed for over 110 years by then since the case of Carver v Pinto Leite[16], where the English Court of Appeal endorsed the following observations of Lord Chancellor sitting in the Court of Chancery in Moore v Craven[17] that:

“The court does not, when discovery is a matter of indifference to the Defendant, weigh in golden scales the question of materiality or immateriality; but where the nature of the discovery required is such that the giving of it may be prejudicial to the defendant, the court takes into consideration the special circumstances of the case, and whilst, on the other hand, it takes care that the plaintiff obtains all the discovery which can be of use to him, on the other it is bound to protect the defendant against undue inquisition into his affairs. The question of materiality must be tested by the reference to the case made by the plaintiff’s pleadings, and to what will be in issue at the hearing.”

32.In Carver[18], James LJ delivered a judgment in these terms:

“Generally speaking, as the Lord Chancellor, if I may venture to say so, well expressed it, the court does not weigh in golden scales the materiality or immateriality of the discovery in considering whether the rule is to be applied–that he who discover at all must discover fully; but, as he goes on to say, there are cases in which it is important that the court should so weigh it, namely, cases in which the discovery is such as the plaintiff, though failing at the hearing, may afterwards use in a way prejudicial to the defendant. In such cases it is important to consider whether the discovery is material for the purpose of enabling the plaintiff to establish his case at the hearing, or material only for the subsequent purpose of the suit, in case the plaintiff should succeed. I am not all disposed to grant discovery when I am satisfied that it is likely to be injurious to the defendant, and I am not satisfied that there is any real prospect of its being of material service to the plaintiff at the hearing.”

33.The reason for the rule in Carver, as Cotton LJ explained in Fennessy v Clark[19] (also approved in Sega[20]), is that “the court is always unwilling before the right to relief is established to make an order for discovery which may be injurious to the defendant, and will only be useful to the plaintiff if he succeeds in establishing his title to relief.”

34.Applying these principles, Lawton LJ in Sega^[21] considered that the identity of the defendant’s customers was unhelpful to establish the plaintiff’s case on liability and thus irrelevant and would only become relevant on the enquiry as to damages should the plaintiff succeed.  The overriding question for consideration when exercising the Norwich Pharmacal jurisdiction, as Lawton LJ put it, is the doing of justice to the parties as a matter of balance.

35.Further, Templeman LJ in Sega[22] pinpointed the exceptional circumstances in Norwich Pharmacal v Customs and Excise Commissioners[23] where on the evidence the plaintiff’s right had undoubtedly been infringed and the plaintiff could not exercise a remedy against the wrongdoer or anybody at all unless the innocent third party disclosed the identity of the wrongdoer.  Cautioning against the draconian nature of a Norwich Pharmacal order sought at interlocutory stage, Templeman LJ had this to say:[24]

“The power should not be exercised in interlocutory proceedings, and certainly not ex parte, unless the court is reasonably satisfied that the plaintiff will, or probably will, suffer irreparable damage if there is any delay in ordering discovery.”

36.Fox LJ also made similar dicta about ordering disclosure of information that is immaterial to any issue save for assessment of damages:[25]

“it must be established that such disclosure is necessary for the reasonable protection of the interests of the party who is seeking the disclosure … and it is necessary to consider where the balance of convenience lies between parties.”

37.In Eli Lilly & Co Ltd v Neolab Ltd[26], the court applied the above principles and granted disclosure order after considering that irreparable damage had been shown by both parties and ruled on the balance of convenience.  One of the major factors taken into account by the court was that the defendant had created a situation where the only way in which the plaintiff could be protected from irreparable damage was by being put in a position where they could take action against the defendant’s customers.

38.Likewise in Wobben Properties GMBH v Siemens PLC[27], the case turned on the question as to whether it was just to grant a disclosure order.  The court took an approach similar to that applied in Eli Lilly[28] and balanced the consequences of the options and held that the balance of justice was in favour of making an order for disclosure to enable the plaintiff to sue for patent infringement.  The determinative finding was that the plaintiff had a genuine intention to sue the defendant’s customers.

39.Turning to the facts of the present case, I agree with Ms Tam, SC, counsel for the Defendants, that the balance of justice lies in refusing the Disclosure Application.

40.First, the information sought is not relevant or material to any issues to be decided at the trial on liability.  It is hard to imagine in what sense the names and addresses of the Defendants’ suppliers and customers of the Subject Sequencers and the Subject Kits would help the Plaintiff to establish its case on liability on the alleged infringement.  In any event, as the 1^st Defendant is the manufacturer of the Subject Sequencers and Subject Kits itself, the Plaintiff does not need disclosure to identify the suppliers.

41.Second, since the Plaintiff and the BGI Group are two giants competing neck to neck and fighting fiercely over the same specialized and unique market, the Defendants have a legitimate concern that the disclosure order would enable the Plaintiff to use the information so disclosed in a way prejudicial to the Defendants even if the Plaintiff fails after trial.  The Plaintiff may use such information to harass the Defendants’ customers even if liability is still very much in contention.  This may seriously damage the Defendants’ goodwill with their customers and deter them from buying or continuing to use the Defendants’ products or services, thereby causing irreparable harm to the Defendants’ business operations.

42.Third, by contrast, the Plaintiff is unlikely to suffer any or any irreparable harm if disclosure is not ordered at this stage.  This is not the case where the Plaintiff would in effect have no remedy at all if it cannot obtain information from the Defendants so as to sue the Defendants’ customers.  Rather, as noted in the Defendants’ affirmations[29], the Defendants’ customers cannot resell or transfer the Subject Sequencers without the Defendants’ consent.  There is thus little risk of onward sales.  Nor could the Defendants’ customers operate the Subject Sequencers without using the Subject Kits from the Defendants.   Further, any loss by the Plaintiff arising from the use by the Defendants’ customers of the Subject Sequencers and the Subject Kits would be readily quantifiable even if the Plaintiff should eventually decide to sue them.

43.Fourth, though Mr Wong, SC, counsel for the Plaintiff, has emphasized the importance of the Plaintiff “to vindicate its legal rights”, it is doubtful whether it would be in the interest of the Plaintiff to commence actions against the Defendants’ customers upon disclosure.  This is because any customers of the Defendants against which the Plaintiff are entitled to bring a claim for infringement of the HK Patent are limited to those in Hong Kong, for the Plaintiff is only entitled to prevent local infringing acts.  As confirmed by the Defendants in their affirmation[30], the 2^nd and 3^rd Defendants have only supplied a total of 15 local customers, mostly comprising major local universities and local healthcare institutions.  The nature of these customers and the products (which are usually used openly) would mean that it is likely that the Plaintiff already knew about a number (if not all) of them. There is yet no evidence showing that the Plaintiff intends to commence or has actually commenced actions against any such universities, hospitals and clinics.  The Plaintiff has failed to make out a case of genuine intention to sue these customers.  In any event, these possible defendants are well established institutions which would not disappear overnight like in other pirate cases.  There is no serious prejudice to the Plaintiff if it only sues these possible defendants after establishing liability in the present case.

44.Fifth, if the only purpose that an order for disclosure may serve is to enable the Plaintiff to take immediate “policing action”, there is simply no immediate need for such order for the purpose of policing any interim relief.  It is evident from the sales figures and records exhibited in the Defendants’ affirmations^[31] that full and proper records regarding the supply of products and services have always been maintained by the Defendants.  Unlike other pirate cases, there is no basis for the court to suspect that the Defendants, being one of the major players in the market, would commit contempt of court for not keeping proper records for their sales. 

45.As to the Plaintiff’s alternative basis for seeking disclosure based on Silver Universe Investments v China Times[32]and Essilor Manufacturing v Wong Kam Wai[33], those cases were in the context of applications for proprietary injunctions for the purpose of equitable tracing.  The considerations for those cases would certainly be different, and so I do not find that they are of much assistance to the present situation in the intellectual property context.  Ultimately, the court would consider the question of balance of convenience (including the possible prejudice to the defendant and benefit to the claimant in obtaining such kind of information before the trial) in deciding whether it is just to grant the disclosure order before the trial of the claim.

46.The Plaintiff also argues that the disclosure is necessary so that the Plaintiff can put the Defendants’ customers on notice about their possible infringements of the HK Patent.  Such notice may be relevant if the Plaintiff eventually decides to sue these customers.  This concern can be taken care of by an undertaking by the Defendants to notify their customers of the existing legal proceedings.  The Defendants are prepared to give such undertaking which is now included in the final order.

47.For these reasons, I do not find it appropriate to order disclosure at this stage and I therefore dismissed the Disclosure Application.

Directions for setting down the case for trial

48.As this case is now under the active case management of the judge in the charge of the Intellectual Property List, I do not find it necessary to discuss the principles as to when the court should make an order for speedy trial.  As I have mentioned on a number of occasions, delay in litigation may devalue intellectual property rights, and so subject to the availability of judicial resources, such kind of disputes should be resolved as soon as possible.  Though the HK Patent is going to expire in August 2023, early resolution of the dispute can help the parties to formulate their business plan for the post-expiry period.

49.On the other hand, the court has to give the parties sufficient time to prepare for the trial, in particular for a case involving complicated technical matters like the present one.  Though similar disputes between the parties have been adjudicated in some other jurisdictions, the court is not certain whether the issues to be canvassed would be the same.  In particular, the HK Patent may not be the same as the patents litigated in other jurisdictions though they may belong to the same family.  The present COVID-19 pandemic also creates further uncertainties so far as the preparation of the trial is concerned.  I understand that the first-instance court in England took 14 months to complete the adjudication of the case.  However, the fact that that case had been handled by two Queen’s Counsel for each side speaks volume about the complexity of the case.  The diary of the court is rather packed at the moment, and I do not see that this case justifies the court in adjourning other cases already fixed in the court diary in order to give priority to the present claim.  In order to secure an early trial date, I allowed the parties to set down the case for trial with 12 days reserved to the first available date before any IP judge.  I understand that the trial is now fixed in December 2022, which I think should be fair to all the parties involved.

50.I make a costs order nisi that the costs of the whole Summons be costs in the cause of the action with certificate for two counsel which will be made absolute 14 days after the date of the handing down of this Reasons for Decision.

Mr Stewart Wong, SC and Mr Philips B F Wong, instructed by Deacons, for the Plaintiff

Ms Winnie Tam, SC and Mr Benny Lo, instructed by Au Yeung, Cheng, Ho & Tin for the Defendants