Review of Patent Cases in the English Courts in 2023

Introduction

For patent practitioners everywhere, 2023 was a significant year. Ten years after the signing of the international treaty governing its operation, and having overcome innumerable hurdles, including Brexit, the Unified Patent Court (UPC) finally opened its doors for business. As ever, we report in the final section of this review on what happened, and for the first time include some UPC cases in our annual summary. Closer to home, the English courts were busy, delivering a total of 68 judgments in patents cases, an output not out of step with previous years (75 in 2022, 66 in 2020, 86 in 2019 and 63 in 2018). The year was notable for at least the following developments:

• The retirement of Lord Kitchin from the Supreme Court. One of the finest lawyers of his generation, Lord Kitchin provided exceptional clarity of thought and analysis in many patent cases, including his last, Thaler¹, included in this review.
• The Court of Appeal in Sandoz and Teva v BMS² providing the first decision in Europe to take into account the EPO Enlarged Board of Appeal decision in G2/21 (plausibility).
• Two major FRAND determinations in InterDigital v Lenovo³ and Optis v Apple⁴.
• Sir Anthony Mann’s decision in Emotional Perception AI’s Application taking a permissive approach to the patenting of AI inventions in the UK and marking a shift in UK IPO practice.
• Guidance on the sequencing of trials in Standard Essential Patent (SEP) cases, putting priority on hearing the FRAND aspects of the case earlier in the proceedings.