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 will adopt my usual format, opening with construction, infringement, defences, and remedies, then moving on to issues of validity and finally the technical issues.
2. Infringement
a. Construction
General principles of claim interpretation
Four full years after the Supreme Court's judgement in Actavis v Eli Lilly2 overhauled the law of patent infringement (and the approach to construction in that context), the task for the court when construing a patent is now fairly well settled. HHJ Hacon captured the general principles governing 'construction' / 'normal construction' / the 'normal interpretation' of a claim in a succinct summary in Kwikbolt v Airbus3 , saying ([38]):
"Since Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 there have been two steps to ascertaining the scope of a patent claim. The first is to decide what the claim means in accordance with the general rules of construction of a document, see Actavis at [58] .... This has sometimes been referred to as the "normal construction" of a claim. It is a purposive construction, the inventor's purpose being ascertained from the description and the drawings as they would be understood by a person skilled in the art with the common general knowledge in mind, see Icescape Ltd v Ice-World International BV [2018] EWCA Civ 2219, at [60]."
Additionally, Judge Hacon stated that the claim language cannot be construed by reference to the alleged infringing product.
In his use of the word 'scope', Judge Hacon was implicitly referring to the reach of a claim for the purposes of assessing infringement, which is discussed below. The first of those stages is the assessment of infringement on the normal interpretation, and the first part of that stage is therefore the interpretation of the claims on the 'normal' basis. As Judge Hacon noted, this is a purposive approach, but it is purposive in the sense traditionally understood under the common law – the inventor's purpose being understood from the language of the claims and their context within the specification of the patent, rather than in accordance with the 'Purposive Approach' laid down by the judgments in Catnic4 , Improver5 and Kirin-Amgen6 (discussed further in this section below).
In 2020, HHJ Melissa Clarke gave some very good general statements of legal principles, and she did so again in 2021 in A Ward Attachments v Fabcon Engineering7 , saying ([55]):
As Birss LJ noted, sitting 'down' as a first instance judge in Facebook v Voxer8
Footnotes
1 "Swings and Roundabouts – A Review of Patent Cases in 2020" – Gordon Harris, January 2021
2 Actavis UK Limited & Ors v Eli Lilly and Company [2017] UKSC 48
3 Kwikbolt Limited v Airbus Operations Limited [2021] EWHC 732 (IPEC) (25 March 2021) HHJ Hacon
4 Catnic Components Ltd & Anr v Hill & Smith Ltd [1982] RPC 183
5 Improver Corp v Remington Consumer Products Ltd [1990] FSR 181
6 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (No.2) [2004] UKHL 46
7 A Ward Attachments Limited v Fabcon Engineering Limited [2021] EWHC 2145 (IPEC) (29 July 2021) HHJ Melissa Clarke
8 Facebook Ireland Limited v Voxer IP LLC [2021] EWHC 1377 (Pat) (26 May 2021) Birss LJ
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