9.8 Appellate review
9.8.1 Permission to appeal
As noted above in Section 9.3.1.2, permission is required to appeal any decision of the English Patents Court. A party seeking to appeal the judgment of the trial judge will usually apply to that judge for permission to appeal as one of the issues to be considered at the consequentials hearing. The trial judge will normally consider the submissions both in writing and orally and must give reasons for granting or refusing permission to appeal.
If the first-instance judge refuses to grant permission to appeal, then that party can make an application on paper to the Court of Appeal.156 Applications to the Court of Appeal for permission to appeal are normally decided by a single appellate judge on paper without a hearing. If the appellate judge considering the application considers that it cannot be fairly determined without an oral hearing, then they will direct an oral hearing.
The test for granting permission to appeal, whether obtaining permission from the trial judge or the Court of Appeal, is whether the appeal has “a real prospect of success” (which means that there should be more than a fanciful chance that the appeal will succeed) or that there should be another compelling reason for the appeal to be heard.157
Following the changes to the CPR, the Court of Appeal in Teva U.K. Ltd v. Boehringer Ingelheim Pharma GmbH158 held that technical complexity is no longer a factor to be considered by the trial judge when deciding whether to grant permission to appeal. As a result, trial judges may be stricter when it comes to granting permission to appeal, especially in obviousness cases.159
9.8.2 Stays pending appeal
If one or both parties are given permission to appeal parts of a decision, the question may arise as to whether the enforcement of a decision or a part thereof should be stayed pending the outcome of the appeal. Generally speaking, the existence of an appeal may lead to the stay of an injunction but is unlikely to stay an inquiry as to damages or account of profits or as to the assessment of costs unless this is agreed to by the parties. If the parties wish to stay a detailed assessment of costs pending appeal, they will need to make an application to the court whose order is being appealed or the appeal court.160
In deciding whether to grant a stay of an injunction, the court must consider the balance of convenience.161 The object is to arrange matters so that, when the appeal is heard, the appellate court can do justice between the parties. Where the potentially adverse consequences of granting the stay are relatively evenly balanced, the court will probably maintain the status quo pending the outcome of appeal.162 The party seeking the stay is likely to be required to give a cross undertaking in damages.
The commencement of an appeal by an unsuccessful patentee on validity will lead to a stay of any order for revocation pending the outcome of the appeal.
9.8.3 Appeals to the Court of Appeal and the Supreme Court
9.8.3.1 Appeals to the Court of Appeal
If permission to appeal is granted either by the trial judge or by the Court of Appeal, an appeal to the Court of Appeal is likely to be heard within 9 to 15 months of the permission being given.
On appeal to the Court of Appeal, it is not possible to adduce fresh evidence other than in exceptional circumstances. An appeal is a review – the Court of Appeal will be reluctant to interfere with the first-instance decision unless the appellant can show that the trial judge erred as a matter of principle or misinterpreted the law.
Normally, on appeal, the only new documents in the case are the formal documents and the skeleton arguments. All the other documents are copies of the documents from the first instance. The formal documents are an appellant’s notice, including the brief grounds of appeal and, in some cases, a respondent’s notice, which is required when a respondent to the appeal wishes to support the conclusion reached by the court below but for reasons other than those given by the first-instance judge. In practice, the parties’ skeleton arguments are full written submissions. In advance of the oral hearing, the appeal court judges will each have read at least the skeleton arguments and the judgment of the court below. They will also read other documents in the case as directed by the skeleton arguments. The oral hearing typically takes one or two days. Rarely will a patent appeal require more than two days. Judgment is usually reserved.
As noted above in Section 9.3.1.2, at least one of the three judges on the panel will be a specialist in patent law. Each of the three judges is independent, and it is open to each of them to write their own substantive decision. If the three judges do not agree, then the decision is that of the majority. However, it is usual for one judge, often the patent specialist, to write a decision with which the others agree. It is not uncommon for one or more of the other judges to make a few written observations to say why they agreed with one or more aspects of the main judgments.
9.8.3.2 Appeals to the Supreme Court
A party can only appeal to the Supreme Court against a decision of the Court of Appeal if it can demonstrate that the appeal raises an arguable point of law of general public importance that ought to be considered by the Supreme Court at that time.163 Permission must be obtained from either the Court of Appeal or the Supreme Court. Unlike with appeals at first instance, the Supreme Court will only consider an application for permission to appeal if the Court of Appeal has declined to give permission to appeal. In practice, permission to appeal to the Supreme Court in patents cases is only granted by the Supreme Court itself. The Supreme Court hears about one patents case every one to two years.