Review of Patent Cases in the English Courts in 2024

Introduction

2024 was the first full year in which the English courts ran in parallel with the UPC. A sense of separation anxiety may have crept into the minds of some practitioners, if not a palpable feeling of FOMO, but any fears that the UK as a jurisdiction would founder as litigants flocked to the new court have been happily dispelled. The English courts delivered a good number of decisions – 68 – in line with the years before that (68 in 2023, 75 in 2022, 66 in 2020, 86 in 2019 and 63 in 2018).

The year was notable for at least the following developments:

• The prevalence of patent cases on vaccines, not just in relation to the Covid-19 wars.
• The Court of Appeal reviewing the UK’s second global determination of FRAND licence terms in InterDigital v Lenovo.
• A number of cases examining the role of motivation in the assessment of obviousness, including, in Samsung v Janssen and Sandoz v Bayer, the impact on the “obvious to try” question of published information on clinical trials.
• The Court of Appeal curbing the enthusiasm over artificial neural networks by allowing the Comptroller’s appeal in Emotional Perception AI’s Application and deciding that the application was excluded from patentability after all.
• The procedural “crunch” in the rivaroxaban litigation, where the parties ran out of road, necessitating multiple interim injunction applications and a sub-5-week substantive appeal.
• The return of the Arrow declaration, successfully granted in Pfizer v GSK.

As with previous years, this review attempts to summarise the most important decisions on a topic-by-topic basis. The UK Patents Act 1977 is referred to as the “Act” and the European Patent Convention 2000 as the “EPC”. Judges are referred to according to the office held at the time of their decision (not subsequent elevation). As ever, the authors have endeavoured to cover every important development that occurred during the course of the year. However, as this is a condensed summary, not every decision is mentioned.

This year, for the first time in twenty years, the review does not include a section on the Unified Patent Court (or “Community Patent / EPLA” as the section heading read in the earlier editions). With the UPC system now established and busy generating its own case law, we have created a separate annual review of UPC cases, contained in a different publication, our UPC Review, which can be found here.