Abstract
Litigation has been likened to war.[iii] As a starting point, the litigation environment in civil suits is clearly an adversarial system. At first glance, it would lend itself to lessons of war, insofar as the parties generally throw everything they can at their opponents in the hope that their legal construction based on the facts will find favour with the decision maker.
Some obvious similarities are that parties in civil litigation may agree on some things but will take polarised positions on critically core issues. In addition, both parties accept that they will have to draw on their resources during the course of the litigation, both in terms of money and the time they must dedicate to proceedings.
The method which this paper puts forward boasts that it will help the party utilising the method and the Court. However, it is not a “one size fits all” suggested solution. It will not appeal to a well-funded party, who, regardless of the merits of their case, is able to adopt through a number of means such as lengthy protracted pre-litigation correspondence, or unmeritorious interlocutory applications, aims to exhaust their opponent financially and/or psychologically, in the belief that the claims, even strong ones, will be abandoned.
This paper proposes that before engaging in applicant/plaintiff civil litigation, at the time when the possible claims are considered, that there should be, in appropriate cases, a “culling” of claims by abandoning mediocre claims and narrowing the scope of the battlefield to only the best claim or claims.
Of course, there is an inclination to try to run as many claims as possible, in the hope that one or more of the claims appeal to the judge. Recently, in the Full Court of the Federal Court judgment in the Katy Perry case (Killer Queen), there were extremely competent lawyers on both sides which did not prevent their Honours of the Full Court from making this observation:
“The primary judge gave extensive reasons, not least because the parties chose to put every conceivably arguable factual and legal contention into issue. Their approach to the appeal was no different.” [iv]
This paper advocates – that in the appropriate circumstances – the strategy of the applicant/plaintiff should be based on the model of the Greeks, predominantly Spartans, at the Battle of Thermopylae, in 480BC.[v] This battle is more commonly identified with the 300 Spartan warriors which, for a time, were able to resist the Persian hoard. It is true that the 300 were ultimately defeated, but not because of the strategy they adopted, but rather by a Spartan traitor Ephialtes, who lead the Persians to a remote path behind the Spartans, leading to the ultimate death of the 300.
The battle, which has been the subject of the 1962 cinematographic film production “The 300 Spartans” starring Richard Egan as King Leonidas, and more recently “300” starring Gerard Butler as the Spartan leader, speaks from the past to inform in this instance, litigators.
The 300 were able to resist the Persian force by limiting the geographic area of engagement, rendering the vast resources of the Persians ineffective. So too, in the conduct of the litigation, if the issues of engagement are narrowed to a much smaller or narrower field of engagement, the potency of a much larger and/or well-funded opponent is significantly reduced (the “300 strategy”).
Of course, there will be readers of this article who have applied such strategy in appropriate cases for many years. However, I would suggest that the “throw in everything” approach dominates the litigation landscape.
There are several mechanisms which may be utilised in the exchange to achieve this goal, however it is a discipline which must be continually practised from correspondence to pleadings and contested interlocutory disputes.
First, we consider the 300 strategy. Thereafter, whilst making comparisons with the 300 strategy, we examine the approach of a number of other strategists who have deployed battle or war strategies to the litigation environment. The paper will then conclude by identifying in summary, the benefits of the 300 strategy when practised in the litigation landscape.
We do not posit a hard and fast rule in the process of litigation, but rather an approach to litigation in an environment when a small to medium enterprise (SME) seeks to enforce its intellectual property right (IPR) against a well-funded alleged infringer.
The strategy has two clear benefits. First, it will usually provide a much more level playing field where the disparity in resources of the opposing parties is reduced substantially. Secondly, the results of implementing this strategy will be welcomed by the Court, as reflecting the applicant’s intention aiming to reduce the issues in dispute to the strongest IPR claim.
What is the optimum goal strategy for war or litigation?
The “off-the-cuff” answer is likely to be “to win”. A less enthusiastic response would be “to win at all costs”.[vi]
Sun Tzu’s[vii] conclusion on the ultimate strategy of war, which, in the authors’ opinion, resonates with litigation, is this:
“Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.”[viii]
In litigation of course, there must be an immediate fight upon the filing of the initiating process. However, following filing, the ultimate strategy must be directed to break down the opponent’s resistance, achieve the relief sought (or as close to it), and consider the costs which are expended to achieve that result.
The 300 strategy aims to narrow the scope of the argument, substantially limiting the actions of a much better resourced opponent and driving the claims to resolution by narrowing the “playing field” or area of substantial dispute.
An essential element of the 300 strategy is that it requires a claim that has better prospects of success than the opponent. It is tailor made for a battle between a large corporation blatantly infringing the IPR of an SME, where the corporation seeks to exhaust the SME during the litigation process with mechanisms such as unmeritorious interlocutory applications.
What is the “300 strategy”?
The 300 strategy is a conscious approach the SME IPR owner adopts in seeking to enforce IPR, which narrows the conduct of the enforcement action to its minimal and most enforceable elements. The 300 strategy aims to limit in any and every way, how the SME approaches the enforcement action from the pleaded infringement case to correspondence and interlocutory procedures (if any), and case management. An example, and a memorable visual of this 300 strategy, is based on the example of the Battle of Thermopylae.
The Battle of Thermopylae was fought in 480 BC between the Persian Empire under Xerxes I and an alliance of Greek city-states, which were led by Sparta under Leonidas I. The battle lasted three days and was one of the most prominent battles of both the second Persian invasion of Greece and the wider Greco-Persian Wars. Leonidas chose to camp at and defend the “middle gate”, the narrowest part of the pass of Thermopylae. The strategy was designed by the Greeks to allow for their inferior numbers and so become less of a weakness.[ix]
The primary source for the Greco-Persian Wars is the Greek historian Herodotus. His account in Book VII of his Histories is such an important source that Paul Cartledge wrote: “we either write a history of Thermopylae with [Herodotus], or not at all”.[x] According to Herodotus, Xerxes’ army was so large that, upon arriving at the banks of the Echeidorus River, his soldiers proceeded to drink it dry. In the face of such imposing numbers, many Greek cities capitulated to the Persian demand for a tribute of earth and water.[xi]
The historian Diodorus Siculus, who had read Herodotus, agreed with Herodotus regarding the number of 300 Spartan hoplites. Herodotus claimed – which has been in dispute – that there were a total of 2.6 million military personnel Xerxes had gathered, accompanied by an equivalent number of support personnel.[xii] Modern scholars tend to reject the figures given by Herodotus and other ancient sources as unrealistic, resulting from miscalculations or exaggerations on the part of the victors.[xiii] Modern scholars’ estimates are generally 120,000 to 300,000, which are usually based on the studies of logistical capabilities of the Persians, the sustainability of the base of operations, and the overall manpower constraints.[xiv]
The Greek forces held back the Persian army until, at the end of the second day, its position was compromised by a Spartan traitor Ephialtes, who lead the Persians to a remote path behind the Spartans, resulting in the ultimate death of the 300.[xv]
At Thermopylae, it was a physical ground. In litigation, it is the conversion of that physically limited area to the manner and field by which the litigation is commenced and conducted.
In circumstances where ancillary claims are arguable but not the best IPR enforcement claim, it requires a dedicated discipline to resist the better resourced opponent by adding ancillary claims such as Australian Consumer Law claims and/or passing off. Adding these claims almost automatically has the effect of widening the field of engagement, so that there is additional strain placed on the SME’s resources in terms of costs and time dedicated to the proceeding.
Undoubtedly, there are practitioners who have adopted this strategy as their preferred methodology. However, it is suggested that these practitioners are in the minority, having observed numerous attempts at trial by correspondence, unnecessarily lengthy pleadings (of which the author admits guilt) and a number of arguable but not strong claims thrown in with a good claim.
The 300 strategy requires identifying the best claim/s.
For example, the best claim might be a trade mark infringement claim. Widening the fighting field by adding a passing off claim or a consumer claim under the Australian Consumer Law (“ACL”), which is contained in the Competition and Consumer Act 2010 (Cth) Schedule 2, opens up more expense and expands the fighting area, and is quite often added just as a precaution in the event the main claim does not stick.
Additional damages are available in each of the main intellectual property regimes, independently of compensatory damages. It has long been the case that under the Copyright Act 1968 additional damages in the nature of punitive damages, may be awarded as well as compensatory damages and the same position now applies under the other statutory intellectual property regimes.[xvi]
If the main claim is based on “deceptive similarity” of the respondent’s trade mark to the registered mark,[xvii] the likelihood is that if that claim fails the misrepresentation element of the passing off claim and s 18 misleading and deceptive contravention in the ACL, is also very likely to fail.
The 300 strategy is not simply applied to choosing the claims to be made. Often firms engage in lengthy correspondence over a range of issues, such as the pleading and discovery interrogatories. Smaller firms with limited resources compared to the opponent, and an IP owner with limited funds, find that a war by correspondence can be expensive. Accepting that a failure to respond will be detrimental to you if an interlocutory application is made, responses should be carefully crafted so as not to be brought out into the wider fighting field.
The 300 strategy dictates that you resist responding to every small point, but rather take a simpler approach of only engaging on the critical point/s. In short, the 300 strategy should be at least considered at every point of the litigation. This, it is suggested, is done by examining each step and asking, “will this open the fighting field, or is this an issue on which there is utility to engage?”
Does this constitute a distraction that the opponent wishes to raise whereby the resources of the IPR enforcer will diminish and/or it will place the alleged infringer in a stronger position?
In a recent case the IPR enforcing party engaged in lengthy correspondence over an alleged copyright claim. The claim was very weak. At one point, with costs mounting responding to lengthy letters, the alleged infringer determined the best strategy was to face any claim. No claim was ever made. Of course, a response to an IPR “cease and desist” letter is essential, however identification of the key weaknesses in the IPR claim can save substantial time and costs.
In another example, in a trade mark infringement action, a respondent claimed a defence to infringement claims by a set of circumstances whereby that respondent sought to amend its defence. The circumstances became the subject of an interlocutory application to amend the defence which was unsuccessful before the docket judge.
As a result, the respondent sought and obtained leave to appeal to the Full Court on a discrete point. Applying the 300 strategy, the applicant concluded that rather than have this side issue become the subject of an appeal to the Full Court of the Federal Court, it consented to the orders that the respondent sought to amend the respondent’s defence to accommodate the circumstances.
The question was remitted to Jagot J (as her Honour then was), being a judge other than the docket judge, and was dealt with as a special question under the Federal Court of Australia Act 1976 (Cth) (FCA Act) s 37P, having regard to the overarching purposes described in Section 37M of the FCA Act, the Court having been satisfied that a question arising in the proceeding be heard separately from other questions arising in the proceeding.[xviii]
Control is limited for an SME who is named as a respondent in an IPR enforcement action. Those difficulties include:
- There is no control over the number of claims which the applicant wishes to make.
- A strategy to focus on the main claims only will leave the respondent open to an application for relief to end the proceeding or part of it early.
This does not prevent the respondent from adopting the 300 strategy to narrow the issues and the engagements.
Comparison of the 300 strategy with some other strategies
Sun Tzu
Sun Tzu was relevantly a Chinese general and military strategist living in the Eastern State of the Zhou Kingdom within the period of 770 – 256 BC. Sun Tzu has been traditionally credited as the author of The Art of War; an influential work of military strategy that has affected both Western and East Asian philosophy and military thinking.
Sun Tzu’s strategies have not been considered for their relevance in ancient times. In more modern times, direct adversarial engagements are reviewed as to their appropriateness in today’s world. It has been said in relation to US military theories:
“The majority of military theories that underpin modern U.S. strategy and doctrine are drawn from Napoleonic Era theorists who focused heavily on decisive battlefield conflict. In today’s post-information age, however, armed conflict represents the least likely manifestation of competition. Today, the use of coercive military force is limited by increasing international economic interdependence and global nuclear deterrence strategies. Consequently, the current strategic operating environment demands a deeper understanding of limited warfare tactics, competitive activities below levels of conflict, and information dominance to achieve strategic objectives. Sun Tzu’s seminal work, “The Art of War,” provides context that can help the United States better understand how to win without fighting, how to overcome a proclivity to utilize coercive force, and how to cultivate nonbinary understandings of war, peace, and competition.”[xix]
Sun Tzu proposed a tiered response to the opposition, a stratagem on these lines:
- If our forces are ten to the enemy’s one, surround him.
- If five to one, attack him immediately without waiting for some other advantage.
- If twice as numerous, divide our army in two. This may draw criticism on the basis that dividing the forces into two violates a fundamental principle of war. However, it has been thought that Sun Tzu’s meaning is not suggesting weakening one’s force by dividing it, but rather that one part of the army may be used in the “regular way” and the other may be used for a special diversion.
- If equally matched, we can “offer battle”.
- If slightly inferior in numbers, we can avoid the enemy, which has been interpreted to mean “we can watch the enemy”.
- If quite unequal in every way, quantitatively or qualitatively (or both), flee from him. The conclusion here is that “though an obstinate fight may be made by a small force, in the end it must be captured by the larger force.[xx]
The 300 strategy does not adhere to any of these layers of strategy. The first distinction is that each of these six strata are dependent on the size and skill of the opponent compared with your own force.
The 300 strategy is applicable to all instances and is most evident in relation to the final scenario: where instead of fleeing, because you have assessed that between you and the opponents, the opponent is quantitatively or qualitatively or both, superior in every way, it proposes to stay and fight, but to narrow the coal face of engagement.
The 300 strategy instructs us to remain, as this is where the strategy is most effective. This is where the intensity of the better financial resources and the better lawyers of the opponent cannot be as effective if the litigation teams met head on in an open field, where the parties engage on a wide number of issues.
There, where the fighting ground is wider, the smaller SME will be stretched to the maximum and seek resolution on even unfavorable terms, just to be out of the litigation which it commenced. Narrowing the scope of the battle issues, reduces the influence of the better resourced opponent.
Each stratagem is addressed in seriatim:
- “If our forces are ten to the enemy’s one, surround him.”[xxi] The 300 strategy is directed to assisting an SME who is seeking to enforce their IPR against a Goliath-type respondent. Surrounding the enemy by widening the number of claims and widening the field of engagement will only lead to exhaustion of the SME’s resources, both financially and mentally, to continue the litigation. It will also empower the larger opponent. Accordingly, the SME should not attempt to surround the opponent and strain his/her resources. If the SME was to face an even smaller opponent, deliberately adopting a strategy to exhaust that smaller opponent by widening the fighting field, this cannot be consistent with the overarching purpose as stated in the FCA Acts 37M or the obligation imposed on practitioners under s 37N for the parties to act in accordance with that purpose. The application by the SME of the 300 strategy to an enforcement action against a party “smaller” than itself, such as a self-represented party, will only help narrow the issues and make for a more efficient proceeding.
- “If five to one, attack him immediately without waiting for some other advantage.”[xxii] Again, this strategy is dependent on an assessment of the opposing force by the numbers and quality of the opponent. The 300 strategy does not support attacking based on an assessment of the capacity of the opponent. It is a strategy which applies regardless of the size of the opponent. It aims to narrow the scope of the “battlefield”. As to an approach of attacking, this will be limited to an attack within the scope of the boundaries set by the claims, being the scope of the dispute. The scope of the dispute by an IPR enforcement is in the hands of the applicant. It is common in IPR litigation for the scope to be widened by a cross-claim for revocation of the IPR, thus dissipating the infringement claim. For example, consistent with the 300 strategy, if there was an aggressive step to be considered by an applicant, this would most likely occur in the case of a summary judgment or default judgment application. However, given the fact that the 300 strategy aims to limit the scope of the engagement, a summary judgment, even if successful, in the hands of a strongly resourced respondent could lead to an application for leave to appeal the summary judgment and thereby widen the “battlefield” – a move contrary to the 300 strategy.
- “If twice as numerous, to divide our army in two.”[xxiii] The comments in the preceding two paragraphs equally apply.It is of no consequence and should not be a temptation to increase the claims or attack the respondent on the basis that the IPR stakeholder is twice as well-resourced as the respondent. Using the processes available under the Federal Court Rules to exhaust a less resourced opponent compared to the SME, is in the author’s respectful opinion, to mis-use those processes for the impermissible motive of exhausting the opponent and not for their genuine application. It is also not consistent with the overarching purpose as stated in the FCA Acts 37M or the obligation imposed on practitioners under s 37N for the parties to act in accordance with that purpose.
- “If equally matched we can ‘offer battle’”.[xxiv] This scenario has been interpreted and paraphrased “[i]f the attackers and attacked are equally matched in strength, only the able general will fight.”[xxv] This places emphasis on the quality and strength of the leadership. The 300 strategy does not respond to such a distinction. There may be an eminent Queens Counsel or Senior Counsel for the opponent, however if the battlefield is narrow, there is a much narrower scope for those skills to be fully displayed and forces an engagement only on the narrow scope of engagement, rendering the QC or SC’s considerable skill of lesser impact.
- “If slightly inferior in numbers, we can avoid the enemy which has been interpreted to mean ‘we can watch the enemy’”.[xxvi] This strategy avoids conflict where there is a perceived slight imbalance in favour of the opponent by its fighting resources. This strategy would suggest to an SME IPR stakeholder to watch the opponent and its use of the contested IPR. This of course, due to the delay in taking enforcement action, would be detrimental to any interlocutory or interim application for injunctive relief. Another “watching” strategy is to fire several “cease and desist” letters across the respondent’s broadside without initiating a proceeding. The difficulty with this strategy against a better equipped opponent is that they may initiate proceedings under the groundless or unjustified threats provisions in the IPR statutory regimes.[xxvii] The SME would then be plunged into the litigation having to then prove that the threats (assuming they are determined to be threats) were justified by having to prove infringement.
- “If quite unequal in every way, quantitatively or qualitatively or both, flee from him. The conclusion here is that ‘though an obstinate fight may be made by a small force, in the end it must be captured by the larger force’.[xxviii] This strategy accentuates and highlights the difference between Sun Tzu’s strategy and the 300 strategy. In litigation there is no doubt an SME will approach IPR enforcement against a well-resourced opponent with some hesitation. Such an opponent would, with its substantial resources, be expected to also retain top tier IP lawyers, and where necessary, experts in the relevant field. Such an SME should consider the advice of its IP lawyers and the planned conduct of enforcement action on the basis of the 300 strategy. Such an opponent will also have the means to challenge the IPR’s existence by cross-claim on any number of grounds relative to the IPR. If the IPR infringement claim is very strong, the SME might consider proposing to its IPR lawyers that the claim be taken on a speculative basis or supported by litigation funding. This will raise the issue as to whether the compensatory damages or the SME’s resources are sufficient to cover the shortfall between the actual costs and out of pockets, and a presumed order of costs on a standard basis. This action will of course, rest with the evaluation by the IPR owner’s IP lawyers considering whether to undertake the enforcement on a speculative basis, of the prospects of any cross-claim for revocation of the right, or any challenge to the claim to copyright originality, standing or ownership.
In this regard, the 300 strategy will have an additional benefit. The costs of a successful IPR claim would be likely to be reduced by unsuccessful ACL and passing off claims, not fully prosecuted.
Sun Tzu said that indirect tactics, efficiently applied, are inexhaustible and by analogy:
- there are not more than five musical notes, yet the combination of these five give rise to more melodies than can ever been heard.
- there are not more than five primary colours (blue, yellow, red, white and black), yet in combination they produce more hues than can ever be seen.
- there are not more than five primary tastes (sour, acrid, salt, sweet, bitter), yet combinations of them yield more flavours than can ever be tasted.
- in battle there are no more than two methods of attack – the direct and the indirect – yet these two in combination give rise to an endless series of manoeuvres … the direct and the indirect lead on to each other in turn … who can exhaust the possibilities of their combination?[xxix]
Clearly there are numerous, perhaps not endless, manoeuvres in litigation, however Sun Tzu’s approach to these did not depend on a single strategy, but rather an understanding that these many manoeuvres necessitated many alternate responses. The 300 strategy simply requires attention at all stages of a proposed litigation and its conduct to a narrower scope of engagement, a pruning. Thus, the combinations of indirect and direct actions which an opponent may generate are limited.
Those direct actions (such as cross claims for revocation) or indirect actions (such as interlocutory applications) will be advanced or defended, bearing in mind the constant awareness to narrow the scope of engagement.
For example, an offer of compromise. There will be, in a properly constructed offer under the principles of Calderbank v Calderbank, included grounds aimed to persuade the opponent to accept the offer.
The 300 strategy does not teach a strategy of non-response as a method of limiting the scope of the engagement, because the failure to respond to certain matters may be taken as a concession or admission.
The strategy does not support a continued practice of lengthy responses, a paper war or trial by correspondence. It does promote responses that are brief, but that summarise carefully each basis for rejecting the offer. Every sentence in response is to be scrutinised as to whether it is giving cause for the opponent to open up a battle by correspondence – an impermissible widening of the fighting face.
The strategy is mindful not to engage unnecessarily in the opponent’s points as if making a submission, but gives sufficient information to allow the Court to consider the point or points and conclude that they justify the position taken.
Clausewitz
Carl Philipp Gottfried von Clausewitz was a 19th Century Prussian general and military theorist who stressed the “moral” and political aspects of war. His most notable work, Vom Kriege, was unfinished at his death on 16 November 1831.
Clausewitz recognized that his ideas connected with other subjects not involving war. He is famous for the aphorism, “War is . . . nothing but a continuation of [politics] [by] other means.”[xxx] Vladimir I. Lenin referred to Clausewitz in these terms:
“We all know the dictum of Clausewitz, one of the most famous writers on the philosophy and history of war, which says: ‘War is a continuation of policy by other means.’ This dictum comes from a writer who reviewed the history of wars and drew philosophical lessons from it shortly after the period of the Napoleonic wars. This writer, whose basic views are now undoubtedly familiar to every thinking person, nearly eighty years ago challenged the ignorant man-in-the-street conception of war as being a thing apart from the policies of government and classes concerned, as being a simple attack that disturbs the peace and is then followed by restoration of the peace thus disturbed, as much as to say: “They had a fight, then they made up!” This is a grossly ignorant view, one that was repudiated scores of years ago … All wars are inseparable from the political systems that engender them.”[xxxi]
So too, litigation cannot be separated from the corporate or personal politics of the IPR owner/s in determining whether to initiate an enforcement proceeding. Market share, the costs of the litigation in financial, emotional and physical terms on the company or individuals, and the risk of losing a challenge to the validity of the IPR are paralleled in war.
The ambitions of a country through its leaders seeking to expand their borders or protect them, the costs financially, emotionally and physically on a country’s population and finally losing territory or worse, being occupied by the opponent or opponents, are factors to consider. For example, the decision of the French government in 1940 to notify Adolf Hitler that it wished to negotiate an armistice, involved, in part, a decision to avoid Paris being levelled and the loss of life and historic buildings. With Germany threatening to occupy Paris, the French government was forced to relocate to Bordeaux on 10 June 1940 to avoid capture, and declared Paris to be an open city the same day.[xxxii]
The 300 strategy in this scenario is, prior to the commencement of a proceeding, an appealing way for SMEs to approach enforcement of the IPR through litigation, where ‘best endeavours’ have failed to reach a resolution.[xxxiii] It is a method by which the SME IPR owner adopts, from as early as the usual ‘cease and desist’ letter, an approach to an IPR enforcement, which consciously militates against expanding the face of engagement.
The difficulty in a satisfactory resolution for the IPR holder at an early stage, is that larger corporations are reluctant to resolve matters on terms favourable to the IPR holder unless there is a substantial risk. The reality of exhausting the rights holder is a powerful consideration. However, there may be other issues which impact on resolution, such as the concern of an adverse public reaction if and when the judgment is published.
Napoleon Bonaparte
The Napoleonic Wars, (1799–1815) were a series of wars that ranged France against shifting alliances of European powers. Napoleon’s successes resulted from a strategy of moving his army rapidly, attacking quickly, and defeating each of the disconnected enemy units. Rather than spreading the heavy artillery out over a greater area to support the infantry, Napoleon used lighter field guns which were lightweight and more versatile, allowing them to be relocated quickly on the battlefield. These field guns would often come together to make a single battery:
Napoleon’s grasp of mathematics as well as tactics and command made him a skilled artillerist. It was in this branch of the military that he began his rise to power. By using artillery to quell a riot in Paris, he gained the favor of the government.
Unsurprisingly, he was an innovator in this field. He pushed the French military toward field guns which were on average a third lighter than those of their British opponents. This allowed the guns to be moved quickly around the battlefield and used to their best effect.
He also focused the power of his guns. Instead of spreading them out to provide support for the infantry, he collected large mobile batteries. Their coordinated firepower could make significant dents in enemy formations. This was the predecessor of the ever-growing batteries of the next hundred years.[xxxiv]
Napoleon’s strategy of outmanoeuvring the opponent by swift movements of his army and attacking quickly with the support of a very mobile artillery force is inconsistent with the 300 strategy. Court processes militate against ambush or surprise. Unlike the swift movements of the French army engaging at a number of locations swiftly, the 300 strategy focusses on a steady series of deliberate engagements within a confined area. Applying the Napoleonic strategy to litigation would equate to a series of swift and varied attacks over a greater face of fighting area thereby inviting engagement at a number of litigation locations.
The 300 strategy seeks to limit the wider scope of the matters of contest, thereby diminishing the effective full force of the opponent.
It has been said in relation to modern military theory that war is divided into strategic, operational, and tactical levels thought to have found its basis in the Napoleonic Wars and the American Civil War.[xxxv]
Referring to the Doctrine for the Armed Forces of the United States,[xxxvi] the ‘Three Levels of War’ article states:
“The tactical level of war involves the planning and execution of battles and engagements by the “ordered arrangement and manoeuver of combat elements in relation to each other and the enemy to achieve combat objectives.”
Litigation identifies with these multi-levels of consideration with costs in terms of actual financial outlay, the risk of adverse costs orders and the time dedicated to the litigation being factors in the operational considerations. However, unlike these Levels of War, Court Rules and Practice Notes import the element of justice levelling the fighting field. The 300 strategy further narrows that field.
WWII – Blitzkrieg
Blitzkrieg, meaning ‘Lightning War’, was the method of offensive warfare responsible for Nazi Germany’s military successes in the early years of the Second World War. Blitzkrieg combined forces of tanks, motorised infantry and artillery to penetrate an opponent’s defences on a narrow front, bypassing pockets of resistance and striking deep into enemy territory.[xxxvii]
This method was used with great success by the German army in Poland in 1939 and in France in May1940:
The French had been preparing to defend the Meuse for years, but the effort had taken on an earnestness in September 1939, when the Wehrmacht had unveiled its “blitzkrieg” tactics for the first time against Poland. The Nazis had defeated the Polish armed forces in just over four weeks, using a combination of mobile troops, armored firepower and paralyzing air attacks featuring the terrifying Stuka dive bombers.[xxxviii]
Prior to May 1940, the combined French and British forces had almost one thousand more tanks than the Germans. French tanks were also superior to the German tanks, with better armour and more powerful main guns. France was also known as a global leader in artillery. The French planned to rush large numbers of infantry divisions across the border of Belgium to take on the Wehrmacht as far forward as possible.[xxxix]
The Blitzkrieg, as Napoleon’s strategy of swift mobile movements, designed to avoid a long war, was successful because the swiftness was focussed on a narrow area of attack, which necessarily, had the advantage of being a surprise. The speed through narrow focal points emphasised the surprise element. It has been said of this swift and concentrated attack:
Germany unleashed its blitzkrieg tactics during the Battle of France to great success. This tactic saw German forces move at an incredible pace and overwhelm the Allied forces wherever they met. The battle began when German forces invaded France through the Ardennes Forest near southern Belgium.
France had spent the years after World War I preparing a line of defences along its border that it shared with Germany. This defensive line was called the Maginot Line and ran from the Switzerland Alps in the south to the Ardennes Forest; however, it did not extend north to the British Channel. France believed that the Ardennes Forest was too thick for German tanks and forces to move through and did not extend the Maginot Line any further north.
The German attack through the Ardennes Forest (codenamed Case Yellow) caught Belgium, Britain and France by surprise. The German forces were able to easily push their way through the Ardennes Forest and moved at a surprisingly fast pace.[xl]
The German blitzkrieg strategy of 1939 and 1940 depended on the element of surprise. Its inferior tanks were more than compensated by the speed of the German blitzkrieg attack. The expectation of the French was that, with the known German tank and artillery capabilities, the German forces were not expected to progress with lightning speed as they did. German troops overran Belgium, the Netherlands, Luxembourg, and France in six weeks starting in May 1940.[xli]
There is however, an obvious difference between war and litigation. An advantage in war is to attack the opposing force by surprise. A purposeful attack, after having planned the manoeuvres with precision, has usually gained an advantage over an unprepared adversary. The surprise military strike by the Imperial Japanese Navy Air Service upon the United States against the naval base at Pearl Harbor in Honolulu, Territory of Hawaii, at 8.00am on Sunday morning, 7 December 1941, is such an example.
It is not intended to reduce the gravity of that attack by drawing an analogy with civil litigation, however it is clear there is no place for surprise attacks in the process of litigation. The Federal Court Rules 2011 (Cth) (FCR), regulate that a party must plead a fact if failure to plead the fact may take another party by surprise.[xlii]
Within the FCA Act, the rules of Court and the Practice Notes issued by the Chief Justice of the Federal Court reflecting the Court’s expectations in the conduct of matters before the Court, there are numerous strategies within the FCR: for example, summary judgment applications[xliii] and preliminary discovery applications, but these are almost all on notice.[xliv] Those actions not on notice such as search and seizure applications, will be interim measures giving the respondent an opportunity to respond.
Another example of the advantage of narrowing the corridor of battle, is seen when the Allied forces pushed into Belgium in May 1940 to meet the German blitzkrieg. On the French Belgium border, the German troops had assembled the largest mechanised force the world had seen to that point in time. The German Ardennes plan, authored by General Franz Halder, the chief of staff of the German Army, was to cross into France via the Ardennes. The traditional route would have meant a war of attrition with the French, with poorer prospects of success. The Allied forces anticipated the move and pushed their best forces to meet the attack, however reconnaissance planes transmitted confusing news to Allied command. The report was a traffic jam of some 250km in length and stretching from the road to the Ardennes, back to the German border. It was said that the French Commander-in-Chief General Gamelin refused to believe the reconnaissance report, and the opportunity to change the course of the war by attacking this gridlock dissipated.[xlv]
This large mechanised force became critically exposed due to the geographic circumstances which created an engagement face, thus removing the advantage of the substantial force behind the attack. Like Thermopylae, the additional forces were rendered ineffectual. Confinement of the issues in most IPR cases is possible in the hands of the IPR applicant.
Of course, the IPR applicant does not have the same power to limit the claims when a cross-claim seeking the revocation of the IP right is brought. Having said that, cross-claims for revocation are far more common than the simple defence of the infringement action, which raises the question of the genuine strength of the cross-claim. Put another way, if a cross-claim is brought in most IP infringement cases, one must assume that a percentage of those cross-claims are strategic and not seriously based on substance.
Conclusion
Without in any way seeking to imply that the ferocity and tragedy of war is diminished by making a comparison with litigation, there are lessons to be learnt from war in a positive and helpful way for litigants involved in Court proceedings. If strategies used in war can have a positive impact in resolving a matter or matters before the Court, then the end justifies the means.
In this paper the author has focused on the Battle of Thermopylae as a battle that informs a technique which is not only consistent with the objectives of the FCA Act ss 37M and 37N, but also eases the financial personal burden on an SME seeking to enforce IPR, particularly against a better resourced opponent.
The goals are attained by adopting a policy in the litigation from the beginning, of limiting the area of engagement. The strategy will be tested. The opponent, particularly larger corporations and larger legal firms acting for them, will in many cases seek to exhaust a smaller IPR stakeholder by applications, lengthy correspondences and in the programming of matters in preparation for trial.
The 300 strategy requires constant examination of the responses to the opponent’s communications and its use of Court processes. There will be a natural “pull” to respond, and indeed each situation must be examined because silence is rarely a helpful response. However, in many cases it is not essential to follow the path the respondent seeks to draw out, and such attempts may be dealt with simply.
[i] Barrister, Brisbane.
[ii] Bachelor of Law Degree Candidate.
[iii] Litigation as War, James W. Gould Litigation Summer 1991 Volume 17 Number 4 (Crump) found at https://www.jstor.org/stable/29759486 ; “Litigation Rules, Clausewitz, and the Strategies of War”, D. Crump, Elon Law Review Vol.9:1 found at:
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://eloncdn.blob.core.windows.net/eu3/sites/996/2019/07/1-22_crop.pdf page 2.
[iv] Killer Queen, LLC v Taylor [2024] FCAFC 149; (2024) 306 FCR 199 at [4].
[v][v] Θερμοπύλαι; “Hot Gates”.
[vi] “’Sue the bastards – leave no stone unturned – I don’t care about the cost – this is war.’ When you hear these words from a client, resist the temptation to take them to heart and file the complaint immediately…”: Litigation as War”, J W Gould, Vol. 17, No. 4 (Summer 1991), p 31 found at https://www.jstor.org/stable/29759486 .
[vii] Sun Tzu was a Chinese general, military strategist, writer, and philosopher who lived in the Eastern Zhou period of ancient China. Sun Tzu is traditionally credited as the author of The Art of War, (translated by Lionel Giles) an influential work of military strategy referred to by both Western and East Asian philosophy and military thinking. Sun Tzu concentrated on alternatives to battle, such as stratagem, delay, the use of spies and alternatives to war itself, the making and keeping of alliances, the uses of deceit, and a willingness to submit, at least temporarily, to more powerful foes: https://en.wikipedia.org/wiki/Sun_Tzu
[viii] The Art of War, Sun Tzu, HarperCollins, 2013 p 9 (“the Art of War”); The Complete Art of War, L. Giles, Wilder Publications 2008, First Edition (“CAW”) p 15.
[ix]Battle of Thermopylae available at: https://en.wikipedia.org/wiki/Battle_of_Thermopylae
[x] Thermopylae: The Battle, Cartledge, Paul (2007) Thermopylae: the battle that changed the world (1. Pbk.ed). London: Pan. p 224 ISBN 9780330419185.
[xi] They Died the Spartan’s Death, Thermopylae, the Alamo, and the Mirrors of Classical Analogy, Advances in the History of Rhetoric, Cox, Jeremy (2016).
[xii] Herodotus VII, 186.
[xiii] Persian Fire: The First world Empire and the Battle for the West, Holland, T. (2006), New York: Doubleday
(Holland) p 237. ISBN 0-385-51311-9; see https://en.wikipedia.org/wiki/Battle_of_Thermopylae#cite_note-h237-68 .
[xiv] Holland p 394.
[xv] https://en.wikipedia.org/wiki/Battle_of_Thermopylae#cite_note-h237-68.
[xvi] Copyright Act 1968 (Cth) s 115(4); Patents Act 1990 (Cth) ss 122(1A), 128(1A); Designs Act 2003 (Cth) ss 75(3), 77(1A), Trade Marks Act 1995 (Cth) ss 126(2), 129, Plant Breeder’s Rights Act 1994 (Cth) s 56(3A), 56A(3A).
[xvii] Trade Marks Act 1995 (Cth) s 120.
[xviii] Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited (No 4) (2022) 166 IPR 144; [2022] FCA 190.
[xix] The Art of Non-War: Sun Tzu and Great Power Competition by James P. Micciche, US Army War College, 18 March 2021 at https://warroom.armywarcollege.edu/articles/non-war/.
[xx] CAW p 17.
[xxi] The Art of War p10; CAW p 17.
[xxii] The Art of War p 10; CAW p 17.
[xxiii] The Art of War p 10; CAW p 17.
[xxiv] The Art of War p 10; CAW p 17.
[xxv] CAW p 17.
[xxvi] The Art of War p 10; CAW pp 17/18.
[xxvii] Copyright Act 1968 (Cth), ss 202 and 202A; Patents Act 1990 (Cth), ss 128–132; Trade Marks Act 1995 (Cth), ss 129–130A; Designs Act 2003 (Cth), ss 77–81; PBR Act, ss 57A, 57D, Circuit Layouts Act 1989 (Cth), s 46; Olympic Insignia Protection Act 1987 (Cth), ss 64 and 65.
[xxviii] The Art of War p 10; CAW p 18.
[xxix] The Art of War p 18.
[xxx] Crump p 2.
[xxxi] The Soviet Art of War, Doctrine, Strategy and Tactics, edited by Harriet Fast Scott and William F. Scott, Westview Press, Inc. 1982 p 25.
[xxxii] https://www.britannica.com/event/Battle-of-France-World-War-II/The-fall-of-France-June-5-25-1940 search conducted on 12 May 2025.
[xxxiii] The Civil Dispute Resolution Act 2011 (Cth) s 6.
[xxxiv] War History Online, A. Knighton, 2 February 2017 available at: https://www.warhistoryonline.com/napoleon/8-changes-napoleon-made-warfare.html?chrome=1
[xxxv] Three Levels of War, USAF College of Aerospace Doctrine, Research and Education (CADRE)
Air and Space Power Mentoring Guide, Vol. 1 Maxwell AFB, AL: Air University Press, 1997
(excerpt): https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/November-December-2021/Harvey-Levels-of War/#:~:text=The%20three%20levels%20of%20warfare,tasks%20to%20the%20appropriate%20command.
[xxxvi] chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://irp.fas.org/doddir/dod/jp1.pdf
[xxxvii] The Imperial War Museum available at: https://www.iwm.org.uk/history/the-german-lightning-war-strategy-of-the-second-world-war#:~:text=Blitzkrieg%2C%20meaning%20’Lightning%20War’,of%20the%20Second%20World%20War.
[xxxviii] How Did Nazi Germany Crush France During World War II So Easily? The National Interest, 12 November 2019 (2019 National Interest) available at https://nationalinterest.org/blog/buzz/how-did-nazi-germany-crush-france-during-world-war-ii-so-easily-95121 2019 National Interest.
[xxxix] 2019 National Interest.
[xl] History Crunch, available at: https://www.historycrunch.com/battle-of-france.html#/
[xli] Available at: https://encyclopedia.ushmm.org/content/en/article/german-invasion-of-western-europe-may-1940
[xlii] FCR r 16.03(1)(b).
[xliii] FCR r 26.01.
[xliv] FCR r 7.23.
[xlv] Greatest Events of WWII, Episode 1 seen at 22minutes and following; also at https://www.historyhit.com/how-a-couple-of-weeks-of-german-brilliance-in-1940-elongated-world-war-two-by-four-years/
