IPEC vs Patents Court: Choosing the Right Venue

When we work with clients facing UK patent litigation, one of the first strategic questions we address is venue selection: IPEC vs Patents Court. This decision has significant implications for costs, case complexity, and the scope of technical evidence required and getting it wrong can be expensive. The UK's two tier patent system offers a unique choice between the streamlined Intellectual Property Enterprise Court (IPEC) and the full procedural machinery of the Patents Court, each designed to serve different types of disputes and different categories of litigants.1

Unlike US patent litigation, UK parties can choose between two specialist patent courts, a unique feature of the English system designed to balance access to justice with capacity for complex cases.2 In our experience, this decision framework affects everything from potential cost exposure to the depth of technical evidence that can be presented, making venue selection a critical component of litigation strategy.

This article provides educational information about UK patent court procedures and is not legal advice. We recommend consulting qualified legal counsel for specific litigation decisions.

Overview of UK's Two-Tier Patent System

The UK operates a sophisticated two-tier patent litigation system within the Intellectual Property List of the Business and Property Courts, located at the Rolls Building in London.3 The Intellectual Property List handles Type 1 claims (patents, registered designs, semiconductor topography rights, and plant varieties) and Type 2 claims (copyrights, design rights, registered trade marks, passing off, and trade secrets), with larger claims exceeding £500,000 heard by the Patents Court (Type 1) or General IP List (Type 2), while smaller claims are handled by IPEC.70 Both courts have jurisdiction over the same types of patent disputes—infringement, validity challenges, declarations of non-infringement, and related matters—but they differ fundamentally in their procedural approaches and cost structures.4

The Intellectual Property Enterprise Court (IPEC) serves as the lower-value, streamlined track, designed specifically to make patent litigation accessible for small and medium-sized enterprises (SMEs) and individuals.5 The Patents Court, part of the High Court's Chancery Division, handles complex, high-value disputes with full procedural machinery and no financial caps.6

This parallel jurisdiction creates a strategic choice point that doesn't exist in most patent systems globally. Both courts hear identical case types; the difference lies entirely in procedure, costs, and the scope of evidence that can be presented.7 We often explain to clients that the system recognises a £50,000 patent dispute between two SMEs requires different procedural machinery than a £50 million pharmaceutical patent battle between multinational corporations.

IPEC: Structure, Purpose, and Procedure

IPEC was established as a specialist court to address a critical gap in IP litigation: the needs of smaller entities who could not afford the costs and complexity of High Court patent litigation.8 We've seen firsthand how this court has opened doors for SMEs who would otherwise be priced out of enforcing their patent rights. The court's development was informed by Lord Justice Jackson's Review of Civil Litigation Costs (December 2009), which identified intellectual property as requiring tailored cost control measures to address disproportionate costs that impede access to justice.68 The court operates under the November 2024 IPEC Guide, which sets out comprehensive procedures designed around cost control and case management efficiency.9

Financial Framework

The cornerstone of IPEC's accessibility is its dual cost structure and in our experience, this is what makes patent enforcement realistic for many of our clients. Cost recovery is capped at £60,000 per side under CPR Part 45(IV) (increased from £50,000 in October 2022), representing the maximum amount a successful party can recover from the unsuccessful party.1053 This cap provides crucial cost certainty for litigants, as the maximum adverse costs exposure is known from the outset and is divided into limits for specific stages of litigation.54

Damages claims are capped at £500,000, though this limit can be waived by agreement between the parties.11 For cases where a claimant obtains a result equal to or better than a Part 36 settlement offer, courts may apply a 25% uplift to the cost cap, potentially allowing recovery of up to £75,000.12

The court also operates a Small Claims Track for claims up to £10,000, with highly restricted costs recovery, making it particularly accessible for individual inventors and micro-businesses.13

Streamlined Procedure

IPEC's procedural design prioritizes efficiency and proportionality. Trials should last no more than two days, or at most three days, requiring active judicial case management to stay within this constraint.1455 This time limitation fundamentally shapes how cases are prepared and presented, requiring lawyers to focus on the most critical issues rather than exploring every possible angle. We typically advise clients that this constraint demands disciplined case preparation from the outset.

The court employs "front-loaded" statements of case under CPR 63.20, requiring parties to set out "concisely all the facts and arguments upon which the party serving the statement relies."[15]56 This mandatory comprehensive pleading differs significantly from standard High Court procedures and means that surprise arguments at trial are discouraged, with parties required to present their complete case theory upfront, leading to more focused and predictable litigation.

Document disclosure operates differently from standard High Court procedures. There is no automatic disclosure; instead, only specific disclosure is available, typically limited to issues identified at the Case Management Conference.1657 The standard Practice Direction 57AD disclosure procedures do not apply in IPEC.58 However, litigants are expected to disclose all known adverse documents whether or not an order for disclosure is made, representing a key exception to the otherwise restricted disclosure scope.59

Cross-examination is strictly controlled, with judges limiting it to topics where it is genuinely necessary for case resolution.18 Expert evidence is similarly managed, with courts often requiring single joint experts rather than competing expert opinions, particularly for technical issues where objective analysis is possible.19 Multi-track cases are heard by His Honour Judge Hacon (Presiding Judge since 2013, with a degree in microbiology and extensive IP expertise) or by deputy judges and recorders who are all intellectual property specialists.67

Patents Court: Structure, Purpose, and Procedure

The Patents Court represents the full machinery of High Court litigation, designed for complex, high-value patent disputes where comprehensive procedure and unlimited discovery may be necessary.20 Operating under the February 2025 Patents Court Guide, the court handles cases that exceed IPEC's financial or complexity thresholds.21

Judicial Resources and Expertise

The Patents Court benefits from nine nominated High Court judges who specialize in intellectual property disputes, including technical complex cases that require deep understanding of patent law and technology.22 The most technically complex cases are assigned to judges with specialised experience in complex IP litigation throughout their careers.23

Cases are allocated using a complexity rating system (1-5) to match judicial experience with case requirements, ensuring that the most challenging technical disputes receive appropriate judicial attention.24 This specialization allows for more sophisticated analysis of complex validity challenges and technical claim construction issues.

Full Procedural Machinery

Unlike IPEC's streamlined approach, the Patents Court operates without time or complexity constraints. Trials can last weeks or months if necessary, and there are no restrictions on the scope of evidence or expert testimony that can be presented.25 This flexibility is crucial for cases involving multiple patents, complex technical disputes, or competition law defenses that require extensive factual development.

Document disclosure follows standard High Court procedures under CPR Part 31, though the High Court's ruling in Positec v. Husqvarna (2016) significantly narrowed R&D documentation disclosure requirements, as patentees will not normally be required to disclose R&D documentation showing how an invention was developed for assessing obviousness.2662 The court retains discretion to order comprehensive disclosure where it is genuinely necessary for case resolution, including technical documents that might be excluded under IPEC's proportionality constraints.27

Expert evidence can be presented in full detail under CPR Part 35, with competing expert opinions on both technical and economic issues, though court permission is required for all expert evidence.2863 This is particularly important for validity challenges involving complex prior art analysis or damages claims requiring detailed economic modeling, where experts provide independent, unbiased opinions on matters requiring specialist expertise.64

Key Differences: Comparison Table

Aspect	IPEC Multi-Track	Patents Court
Cost Cap	£60,000 per side (£75,000 with Part 36 uplift)	No cap (can exceed £500,000+ per side)
Damages Cap	£500,000 (waivable by agreement)	No cap
Trial Length	Maximum 2 days	No limit (typically 3-15+ days)
Case Timeline	Front-loaded; faster to trial	Case Management Conference process; 12-month target
Disclosure	No automatic disclosure; specific documents only	Standard disclosure; potentially extensive
Expert Evidence	Limited scope; often single joint experts	Full competing expert evidence
Statements of Case	"Front-loaded" - detailed upfront	Less detailed initially; "Initial Disclosure" approach
Judge Assignment	Specialist IP judges (consistent assignment)	High Court judges (may include non-specialists)
Cross-Examination	Strictly limited to necessary topics	Full cross-examination permitted
Suitable For	SME disputes, single patents, cost-sensitive parties	Complex multi-patent cases, high-value claims
Appeal Route	Court of Appeal (with permission)	Court of Appeal (with permission)

How to Choose: Decision Framework

We understand that facing patent litigation can feel overwhelming, especially when the venue choice has such significant cost implications. Selecting the appropriate venue requires systematic analysis of several key factors that interact to determine which court's procedures and cost structure best serve the dispute's needs. Here's how we approach this analysis with our clients.

Case Value Analysis

The fundamental threshold question is whether damages are likely to exceed £500,000. If so, Patents Court jurisdiction may be necessary unless parties agree to waive IPEC's damages cap.29 However, we always remind clients that this analysis must consider not just monetary damages but also the value of potential injunctive relief, which can represent the true economic stakes in many patent disputes.30

For cases where an injunction could prevent sales worth millions of pounds annually, even if past damages are modest, the Patents Court may be the appropriate venue regardless of historical damage calculations.31

Technical Complexity Assessment

Technical complexity affects both the evidence needed for case resolution and the time required for trial preparation and presentation. Cases involving single patents with straightforward infringement issues may be suitable for IPEC even if technically sophisticated, provided they can be presented comprehensively within IPEC's constraints.32

Multi-patent cases, complex claim construction disputes, or validity challenges requiring extensive prior art analysis may exceed IPEC's procedural capacity. The court's two-day trial limit becomes a practical constraint when cases require detailed technical evidence from multiple experts or extensive cross-examination of technical witnesses.33

Resource Considerations

Party resources both financial and organisational, significantly influence venue appropriateness. IPEC's cost caps protect resource limited parties from potentially devastating adverse cost awards, making patent enforcement feasible for SMEs that might otherwise be priced out of litigation entirely.34 We've worked with businesses for whom this cost certainty makes the difference between pursuing legitimate claims and abandoning them.

Conversely, well-resourced parties in high-stakes disputes may prefer the Patents Court's unlimited procedural machinery, particularly when thorough factual development could provide litigation advantages that justify the increased cost exposure.35

Evidence Scope Requirements

The scope of evidence likely to be necessary for case resolution provides crucial venue selection guidance. Cases requiring extensive document disclosure—such as competition law defenses or complex damages claims requiring detailed financial analysis—may be unsuitable for IPEC's limited disclosure regime.36

Similarly, disputes requiring detailed cross-examination of technical witnesses or extensive expert evidence may need the Patents Court's full procedural capabilities rather than IPEC's streamlined approach.37

When IPEC Makes Sense

In our work supporting patent disputes, we've seen IPEC serve particular categories of disputes exceptionally well, providing access to justice that might otherwise be economically impossible.

SME Patent Enforcement

Small and medium sized enterprises benefit enormously from IPEC's cost certainty. Research evaluating IPEC reforms from 2010-2013 found that case filings by SMEs increased substantially following the reforms, with the cost cap and active case management identified as the most influential factors driving this increase in SME litigation.3866 We regularly see this in practice: a technology startup with a valuable patent can enforce it against larger competitors without risking bankruptcy if the litigation is unsuccessful, as the £60,000 cost cap provides definite boundaries around litigation risk, enabling business planning and litigation budgeting that supports rational settlement negotiations.

Single Patent, Single Product Cases

Straightforward infringement cases involving one patent and one accused product often fit IPEC's procedural constraints well. These disputes typically require focused claim construction analysis and straightforward infringement comparison, which can be presented effectively within the two-day trial limit.39

Cost-Sensitive Litigation

Individual inventors, universities, and research institutions often find IPEC the only practical venue for patent enforcement. The alternative—risking hundreds of thousands in adverse costs—makes enforcement economically irrational for many meritorious cases.40

Clear-Cut Validity Challenges

Some validity challenges, particularly those based on obvious prior art or clear enablement failures, can be presented effectively within IPEC's constraints. When the technical issues are straightforward and the legal analysis is clear, IPEC's streamlined procedure can resolve disputes efficiently.41

When Patents Court Makes Sense

The Patents Court becomes essential when disputes exceed IPEC's procedural or financial constraints. We typically recommend this venue in the following situations.

High-Value Claims

Claims seeking damages exceeding £500,000 typically require Patents Court jurisdiction unless parties waive IPEC's damages cap. This includes most pharmaceutical patent cases, major technology licensing disputes, and cases involving significant market exclusion through injunctive relief.42

Complex Multi-Patent Disputes

Cases involving patent portfolios, multiple accused products, or complex licensing arrangements often require procedural flexibility that exceeds IPEC's constraints. The ability to conduct extensive discovery, present comprehensive expert evidence, and conduct detailed cross-examination becomes essential for thorough case resolution.43

Technical Cases Requiring Extensive Evidence

Complex validity challenges involving numerous prior art references, detailed technical analysis, or experimental evidence may require the Patents Court's unlimited procedural machinery. Some obviousness analyses require extensive technical evidence that cannot be compressed into IPEC's time constraints.44

Multi-Party Disputes

Cases involving multiple plaintiffs, defendants, or complex licensing arrangements benefit from the Patents Court's case management flexibility. The ability to coordinate complex procedural schedules and manage extensive document production becomes crucial in multi-party contexts.45

Technical Evidence Implications

The choice between IPEC and Patents Court fundamentally affects how technical evidence can be presented, which may determine case outcomes in technically complex disputes. As technical experts ourselves, we consider this one of the most important factors in venue selection.

IPEC's Streamlined Technical Evidence

IPEC requires focused, streamlined technical presentations that eliminate tangential analysis. Claim charts must be concise and targeted, prior art analysis must focus on the most relevant references, and expert evidence must be compressed into essential conclusions rather than comprehensive analysis.46

This constraint can benefit cases where the technical issues are straightforward, forcing parties to focus on dispositive evidence rather than exploring every possible technical angle. However, it may disadvantage cases where comprehensive technical analysis is necessary for accurate case resolution.47

Patents Court's Comprehensive Analysis

The Patents Court permits full technical development, including detailed claim construction analysis, comprehensive prior art reviews, and extensive expert testimony on complex technical issues. This capability is essential for cases where technical nuance affects legal outcomes.48

For example, complex pharmaceutical patent cases involving detailed chemical analysis or biotechnology cases requiring extensive technical background may require the Patents Court's full evidence capacity for accurate resolution.49

Expert Fee Budgeting

IPEC's cost caps require careful expert fee budgeting, as expert costs must fit within the overall £60,000 recovery limit. This constraint may require selecting focused expert analysis over comprehensive technical review, potentially affecting case outcomes where detailed technical evidence is crucial.50 We help clients navigate this by identifying which technical issues are genuinely dispositive and prioritizing expert resources accordingly.

The Patents Court's unlimited cost structure permits comprehensive expert evidence when necessary, though this comes with correspondingly higher cost exposure for unsuccessful parties.51

Strategic Considerations

Several strategic factors influence venue selection beyond the basic procedural and cost considerations. In our experience, these nuances often prove decisive.

Transfer Between Venues

Cases can be transferred between IPEC and the Patents Court when initial venue selection proves inappropriate.52 However, transfer applications require court approval and may result in procedural delays and additional costs. Courts consider factors including case complexity, financial position of parties, and access to justice concerns when evaluating transfer applications.53

Notably, in Kwikbolt Ltd v Airbus Operations Ltd 2021 EWHC 732 (IPEC), involving a small aerospace fastener manufacturer's patent against Airbus, the court declined transfer despite complexity arguments, emphasizing that access to justice concerns outweighed the defendant's preference for Patents Court procedures.5465 The case illustrates IPEC's role in providing "speedier and less costly" litigation while ensuring access to justice for parties without large financial resources.

Settlement Dynamics

Venue selection significantly affects settlement negotiations something we consider carefully when advising clients on litigation strategy. IPEC's cost caps create more predictable settlement ranges, as parties face limited adverse cost exposure. This can encourage reasonable settlement discussions, as the downside risk is bounded.55

The Patents Court's unlimited cost exposure can create either settlement pressure (due to high litigation costs) or settlement resistance (when parties view the stakes as justifying comprehensive litigation).56

Part 36 Offers and Costs Consequences

Part 36 settlement offers carry significant costs consequences in both venues, but these operate differently under each court's cost structure.57 In IPEC, successful Part 36 offers can trigger the 25% cost cap uplift, potentially increasing cost recovery to £75,000.58 In the Patents Court, Part 36 consequences can result in significantly higher cost awards, creating stronger settlement incentives.59 Under Patents Act 1977 Section 106, courts have discretion in awarding costs and must consider all relevant circumstances, including the financial position of both parties, their conduct, and whether settlement efforts were made.69

Practical Guidance

Venue Selection Checklist

Choose IPEC when:

• Damages likely under £500,000
• Single patent, straightforward infringement
• Cost-sensitive parties or SME disputes
• Technical issues can be resolved in focused presentation
• Settlement discussions benefit from cost certainty

Choose Patents Court when:

• Damages likely exceed £500,000
• Complex multi-patent or multi-party disputes
• Technical issues require extensive expert evidence
• Discovery scope needs exceed IPEC's limitations
• Parties have resources to support comprehensive litigation

Red flags for wrong venue choice:

• Attempting complex multi-patent case in IPEC
• Simple SME dispute with unlimited cost exposure in Patents Court
• Technical evidence needs exceeding chosen venue's capacity
• Party resources mismatched to venue's cost structure

Case Allocation Considerations

The choice between IPEC vs Patents Court should align with both case characteristics and client objectives. Cost-sensitive clients with straightforward cases benefit from IPEC's predictable structure, while complex, high-stakes disputes may require the Patents Court's comprehensive procedures.60

Early venue assessment should consider not just current case characteristics but also likely procedural needs as the case develops. Cases that initially appear suitable for IPEC may reveal complexity requiring transfer to the Patents Court, creating procedural complications and additional costs.61

Critical Mistakes to Avoid

We've seen parties make costly venue selection errors. Here are the most common mistakes and how to avoid them.

Filing Complex Multi Patent Cases in IPEC

The mistake: Assuming IPEC's lower costs make it automatically preferable, even for technically complex disputes involving multiple patents.

Why it fails: IPEC's two day trial limit cannot accommodate comprehensive analysis of multiple patents. The court may limit issues to be tried, potentially excluding valid claims or defenses. Worse, the case may be transferred mid proceedings, wasting time and costs already incurred under IPEC's streamlined procedures.

Better approach: If your dispute involves more than one or two patents with interrelated validity and infringement issues, the Patents Court's unlimited procedural capacity is likely necessary from the outset.

Choosing Patents Court for Simple SME Disputes

The mistake: Defaulting to the Patents Court because it's perceived as more "serious" or comprehensive.

Why it fails: An SME faces potential adverse costs of £500,000+ in the Patents Court versus £60,000 maximum in IPEC. We've seen businesses with meritorious claims abandon them entirely because Patents Court cost exposure made enforcement economically irrational.

Better approach: Assess whether your case genuinely requires Patents Court procedures. Most single patent, single product disputes can be resolved effectively in IPEC.

Underestimating Technical Evidence Requirements

The mistake: Selecting IPEC based on damages value alone, without considering the technical evidence needed for case resolution.

Why it fails: Some validity challenges require extensive prior art analysis that cannot be compressed into IPEC's streamlined format. Expert evidence limitations may prevent presentation of crucial technical arguments.

Better approach: Map out your likely technical evidence needs before venue selection. If multiple experts or extensive technical cross-examination will be required, factor this into your venue decision.

Ignoring Settlement Dynamics

The mistake: Choosing venue without considering how cost structures affect settlement negotiations.

Why it fails: Venue choice shapes the entire settlement landscape. IPEC's bounded costs can actually disadvantage well resourced defendants who prefer unlimited cost exposure to pressure resource-limited claimants.

Better approach: Consider venue selection as part of overall litigation strategy, including settlement positioning.

Funding Options and Cost Management

For parties concerned about litigation costs, several funding mechanisms can make patent enforcement more accessible regardless of venue choice.

After The Event (ATE) Insurance

ATE insurance covers adverse costs if litigation is unsuccessful. This is particularly valuable in Patents Court cases where adverse costs exposure is unlimited. Premiums are typically calculated based on case merits and can sometimes be recovered from the losing party.72

Third-Party Litigation Funding

Third party funders may finance patent litigation in exchange for a share of any damages recovered. Funders typically require strong case merits and sufficient damages potential to justify their investment. This option is more common in Patents Court cases where damages potential is higher.73

Conditional Fee Arrangements (CFAs)

Law firms may offer conditional fee arrangements where fees are reduced or waived if the case is unsuccessful, with enhanced fees if successful. The "success fee" uplift is typically capped at 100% of the base fee.74

IPEC as Cost Management

For many clients, IPEC's cost caps serve as built in cost management. The certainty of £60,000 maximum adverse costs exposure enables rational business decisions about enforcement without requiring external funding arrangements.

Conclusion

The choice between IPEC vs Patents Court represents a fundamental strategic decision that affects every aspect of UK patent litigation. IPEC's streamlined, cost-capped approach provides crucial access to justice for SMEs and straightforward disputes, while the Patents Court's comprehensive procedures serve complex, high-value cases requiring extensive technical development.

Successful venue selection requires careful analysis of case value, technical complexity, party resources, and evidence requirements. The UK's two-tier system provides valuable flexibility, but this choice carries significant consequences for litigation strategy, cost exposure, and case outcomes.

Academic research by Helmers and McDonagh analysing UK patent cases from 2000-2008 found that patent litigation costs at the Patents Court range between £1 million and £6 million for full trials, with high costs attributed to disclosure requirements, scientific experiments, and expert testimony needs.71 The strategic framework we've outlined provides guidance for navigating this critical decision, but each case ultimately requires individual analysis based on its specific characteristics and objectives.

If you're facing a patent dispute and need help understanding your technical position, evaluating prior art, or preparing technical evidence for either venue, we're here to help. Our technical expertise can support your legal team in building the strongest possible case within the constraints of your chosen venue.

Caveat: This article focuses on England & Wales; Scotland and Northern Ireland have different court structures. This is educational information, not legal advice—please consult qualified legal counsel for specific litigation decisions.

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Sources

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