'Should I Stay Or Should I Go (To Trial)?' - Court Of Appeal Guidance In Glaxo v Genentech

The Court of Appeal in Glaxo v Genentech[2008] EWCA Civ 23 has clarified the test on whether to stay UK proceedings for revocation of a UK designation of a European patent pending resolution of opposition proceedings to the patent at the European Patent Office (EPO). The previous approach of the UK Courts has been to apply a presumption in favour of a stay but not where to do so would cause injustice. In the past various factors had been taken into account in exercising this discretion. The Court of Appeal was therefore asked in the present case to provide determinative guidance on the issue.

The starting point in conflict of laws cases in general commercial cases is that there should only be one court for determining the issue in question, and there is therefore a general presumption in favour of a stay. The Court held that in patent cases, however, the...