20th Annual Patents Review

1. Introduction

When I completed last year's review, noting that it was my nineteenth such report, I quietly had the hope that I would be able to mark my 20th anniversary with something quite significant to report on. Little did I know…

I do not think there has been a more revolutionary and significant year in all of the 20 years for which I have been compiling this annual review. Things have changed in the last year. Further, new issues have emerged, along with much needed clarification on some important aspects of patent law and practice.

What is more, there is a lot more to come with a very significant Supreme Court hearing listed for February. These are certainly interesting times in the world of patents.

I will be adopting my usual format, dealing first with infringement and construction issues, moving to damages, remedies and costs, then the various grounds of invalidity, and finally technical matters and procedure.

Follow the links to the chapters below or download the Annual Patents Review 2017 in full.

  1. Infringement
  2. Validity
  3. Technical Matters and Procedure
  4. Competition Law, Settlement and Licencing
  5. Employee Inventor Compensation

7. Summary and Conculsions

I could hardly have asked for a more significant development to mark the occasion than the introduction into UK law, at last, of a doctrine of equivalents.

This is particularly appropriate in the context of these annual reviews because, right from the start, I stated in open terms that I believed this was the right approach. I always thought that the Improver decision was wrong, and I looked enviously across the Atlantic as the USA perfected its own position in the Warner-Jenkinson[1] case.

I was encouraged by the approach of the then Mr Justice Neuberger in 2001 and cheered on Laddie J, later Professor Sir Hugh Laddie, as he pointed out the absurdity of brushing aside the amendment to the Protocol on the Interpretation of Article 69 as if it meant nothing.

I was then downcast by the seemingly definitive judgment of Lord Hoffmann in Kirin-Amgen. His approach seemed to me to be at the end of the story.

However, Lord Neuberger bided his time and, as the final whistle approached on his career, he converted his last chance to restore his, and my, preferred position.

It is not universally popular, and in some respects it raises as many questions as it answers. However, I think we will come to see that it has an internal logic which was always missing from the so-called "Protocol questions".

In other respects the world of patents just flows on. During the last 20 years we have seen a high tide of obviousness, where it appeared that nothing could survive the scrutiny of the London Patents Court. Then the waters receded after the House of Lords, as it then was, intervened in Conor v Angiotech[2]. If I have a major worry now, it is that the tide is coming back in. The approach of the judges to issues like "obvious to try" and document searches by the notional skilled team seems to be taking us back towards a position where an inventive step is required to be more of an inventive leap.

For a number of years now I have speculated as to whether maybe next year, I would be reporting on the first cases in the Unified Patents Court. Frankly, I give up. We had a "remain-leaning" IP Minister in the shape of Jo Johnson. I know pretty much nothing about Sam Gyimah, except that he did campaign for the UK to remain in the EU, so might support the UPC? We shall see, and we shall wait to see what the German constitutional court has to say in due course. Perhaps this will be the year? Perhaps not.

If you have read the chapters of this annual review that are linked above, you will have got a pretty clear picture by now that choosing the 2017 Judge of the Year was not a difficult or protracted process.

What a way to go! Lord Neuberger is fully deserving of this accolade - his second win in four years. Not only has he courageously taken on almost the entire patent establishment to set out a revolutionary change in UK Patent Law, but he has done so in a brief, readable, and extremely well written judgement which flows logically and straightforwardly and will, in my view, be difficult to challenge.

Back in the days when I used to buy boxes of fireworks for home display, there was commonly a simple instruction on individual fireworks which read:

"light the blue touch paper, then retire"

Bravo Lord Neuberger. You have retired in great style!

Footnotes:

[1] Warner-Jenkinson Co. Inc. v Hilton Davis Chemical Co., 520 U.S. 17 (1997), which elaborated on the statement of the principle in Graver Tank & Manufacturing Co Inc v Linde Air Products Co 339 US 605, 607 (1950)
[2] Conor Medsystems Incorporated v Angiotech Pharmaceuticals Incorporated & Ors [2008] UKHL 49