Back To Basics - A Review Of Patent Cases In 2021

• Published date: 14 February 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Mr Gordon Harris and Ailsa Carter

1. Introduction

At the outset of last year's Annual Review¹ I said that the year 2020 could not have been described as "normal" in any sense of the word. The world was coming to terms with the worst global public health crisis for a century, and this had impacted on so many aspects of our daily lives, not least the conduct of litigation in the UK. I praised the courts and the judges, and in particular Lord Justice Birss for what I described as their "ingenuity, inventiveness, determination and hard work" in delivering an almost seamless service to litigants in the IP courts, which was reflected in the substantial volume of judgments handed down.

Much of what seemed inventive and ingenious last year has now become "the new normal", and I will return to the new practices which have been adopted, and which are clearly here to stay, below.

We now have a fully stocked bench of IP specialist judges at all levels - a really very welcome development and one which bodes well for the medium term future of patent litigation in the UK, despite all the challenges which lie ahead. With Lord Kitchin in the Supreme Court, the Lords Justice Arnold, Birss and Lewison in the Court of Appeal, Meade J and Mellor J in the High Court and HHJ Hacon and HHJ Melissa Clarke in the IPEC, we have proven, experienced and reliable judges at all levels. Further, as we will see, they are ably supported by a growing rank of deputies who are showing themselves to be more than capable of handing down strong, clear and helpful judgments.

The upshot of all this has been a fascinating set of judgments in 2021, across the full range of patent topics. Whilst there are the usual highly technical cases in the Life Sciences and Tech fields, as someone who is very much at home in the world of "planes, trains and automobiles", I am delighted to see really important patent law issues being discussed in cases about fixing tools and seed drills.

There is, as will become clear, a very welcome trend towards "pulling the threads together" and providing clear summaries of the established positions as the bedrock of future judgments. This has been a year when, in many respects, the case law has taken us "back to basics".

None of this should be taken as acknowledgment that everything is now perfect, and this paper would not be complete without at least one major rant about a judgment which, to my mind, flies in the face of all sensible and proportional reasoning, but you will have to read on to find that.

I...