The Supreme Court
(right) published its judgment in the
Virgin Atlantic v Zodiac case this week, its fifth IP
ruling since it replaced the House of Lords as the
UK’s highest court in October 2009, following
Lucasfilm v Ainsworth (copyright and design),
HGS v Eli Lilly,
Schutz v Werit (both patent) and
PRCA v NLA (copyright). As
we’ve noted before, the generalist judges of
the Supreme Court seem to take a somewhat different view to the
specialists in the Court of Appeal: in four of these cases they
have reversed the lower court, and in the other one (PRCA) they
referred questions to the CJEU.
It prompts the question: what makes them tick? Contrary to
what you might expect, today’s Supreme Court
judges don’t wear robes; they consult laptops
during trials; and even have their own TV
channel. Interestingly, the lead opinions in the two most
recent IP judgments were both written by Lord Sumption, the
very model of a modern judge.
Sumption (left)
was appointed to the Court without having served an
apprenticeship in the High Court or Court of Appeal. He was
viewed as one of London’s
best barristers (a member of Brick Court Chambers, home to
that other notable IP jurist
Lord Hoffmann) and his last job before joining the bench
was successfully representing the Russian billionaire and
Chelsea FC owner Roman Abramovich in a $6.5 billion trial over
oil and gas deals in Russia (Sumption was
rumoured to have been paid some £10 million in fees
– though this figure seems too high to be credible,
even by the standards of the London bar).
Before becoming a lawyer Sumption was a professional
historian at Oxford University and he is probably as well known
for his
prize-winning history of the Hundred Years War as for his
legal work. He has published three big volumes so far, and has
a further two planned. For those not familiar with this saga of
English-French rivalry (which, some would argue, continues in
debates in Brussels today), the Hundred Years War was a
dynastic and territorial dispute that lasted from 1337 to 1453.
It’s probably most familiar today through the
filter of Shakespeare, in particular the play Henry V.
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| One of Lord
Sumption's former clients |
Sumption is learned, cultured, successful and, according to
those who have seen him in action, "spectacularly bright" and
"able to see straight through flannel". Apart from being an
author, he has no background in IP (though he was called in to
represent Lucasfilm before the Supreme Court in the Star Wars
helmet case) and no scientific training. But working on
billion-dollar cases and having a detailed knowledge of
medieval European history probably gives you a sense of
perspective. For Sumption, reviewing a patent decision from
1908 – as he did in the Zodiac case – must
have felt like reading a newspaper.
And does all that help you come to the right decision? In
Zodiac, the Court effectively overturned existing
practice, saying that damages should not have to be paid for
infringing a patent that has been revoked. On one hand, you
could say that sounds reasonable:
patent owners should not be rewarded when there is no
invention. On the other, does it make the outcome of
litigation less certain and encourage time-wasting by
parties? Readers will have their own views. But
it’s probably not surprising, given its wide
mandate and the varied experiences of its members, that for the
Supreme Court the principle of fairness trumps all other
considerations.