An International Guide to
Patent Case Management for Judges

Full guide

Download full guide Download current chapter
WIPO Translate
Google Translate

9.8.3 Appeals to the Court of Appeal and the Supreme Court 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, 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. 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.