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