The Court of Appeal confirms that retrial is not permitted

27 June 2018

Alcon has successfully resisted AP Racing's appeal against an Intellectual Property Enterprise Court (IPEC) decision. The case concerns Alcon's high performance brake caliper designs and technology.



The Court of Appeal has dismissed AP Racing's appeal of an IPEC decision and rejected its claim for patent infringement against Alcon.

AP Racing, which is a subsidiary of Brembo, owns a patent which claims the use of extended asymmetrical stiffening bands at the periphery of lightweight racing calipers. The stiffening bands are said to resist torsional forces and enable further lightening of the caliper body. In the IPEC Judge Hacon construed the patent and concluded that six of the seven calipers accused by AP Racing did not infringe. AP Racing appealed in respect of two of the non-infringing calipers. Judge Hacon's view of the patent was that it was unsatisfactorily imprecise as to how one can visually determine that a peripheral stiffening band is present as claimed, but that it was "just about workable".

The Court of Appeal, led by Lord Justice Lewison, dismissed the appeal in its entirety for the following reasons:

  1. AP Racing conceded that it did not challenge the overall approach of HHJ Hacon to the exercise of construing the patent. It was therefore simply a matter of AP Racing disputing a value judgment made by the court below, which is something the Court of Appeal will be very cautious about disturbing.
  2. AP Racing's pleaded case as to the location, profile and extent of various stiffening bands had changed on several occasions during the litigation, which was at odds with the requirements of the IPEC, where parties should set their full cases out at an early stage. On appeal, AP Racing sought to present a further new case.
  3. LJ Lewison quoted himself in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, explaining that:

    the trial is not a dress rehearsal: it is the first and last night of the show

    He went on to conclude that: The function of the appeal court is not to try the case again, but to review the decision of the trial judge. To present an appeal court with a new case subverts that function.

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