Costs in Eurocopter v Bell

The only patent case posted for the week of 12 August was the costs decision in Eurocopter v Bell 2012 FC 842. While I won’t comment in detail, Martineau J’s decision was interesting in several respects. He indicated at [22] that the costs award in a “lengthy and hard-fought” patent case should normally be assessed at the upper end of column IV of Tariff B. His discussion of what constitutes success and how to assess costs in when success is divided was also interesting. Eurocopter was successful in respect of the Legacy landing gear, of which only a small number were made by Bell, but Bell was successful in respect of the Production landing gear, which, as the name reflects, was put into production. Martineau J concluded that overall, Eurocopter was the most successful party, but while he assessed Eurocopter’s costs at the upper end of column IV, he reduced the costs award by 50% to reflect “Bell’s indisputable partial success in defending its Production gear and Eurocopter’s choice to pursue an action against the Production gear in which it was ultimately unsuccessful” [23].