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Cases to look out for in 2017 - the UK



James Nurton, London


In the first of a series of articles looking at trials and judgments scheduled for this year, we profile the Brexit, Eli Lilly v Actavis and Glee cases among others

UK Supreme Court

SupCt-UK-300
UK Supreme Court
All eyes will be on the UK Supreme Court this month, with the 11 judges due to give their judgment in the Brexit case brought by Gina Miller (and others). The main question is whether the Court will uphold a ruling that Parliament must vote on triggering Article 50 (the formal means of notifying the UK's intention to leave the EU).

However, the ruling may also go into detail about exactly what level of Parliamentary scrutiny (if any) is required, and whether other bodies such as the Scottish Parliament and the Northern Ireland Assembly should also have a say.

The case does not have direct impact on IP, but it will have implications for the timing of Brexit, which in turn will affect what happens to EU trade marks and registered Community designs, the separation from EU Directives and Regulations and perhaps the implementation of the Unitary Patent and UPC.

The Court has a dedicated page with all the relevant documents in the case.

SEE ALSO: LORD KITCHIN INTERVIEW: ‘YOU HAVE TO BALANCE REASON WITH HUMANITY’

Pemetrexed

Of more immediate interest to patent owners is the hearing in Eli Lilly v Actavis, part of the litigation over pemetrexed disodium, which is scheduled for up to three days from April 4.

The Court has agreed to hear both parties' appeals from the Court of Appeal rulings in 2015 (available here and here), both of which were written by Lord Justice Floyd. The case addresses whether Actavis's proposed cancer treatment infringes Lilly's patent either directly (under Article 69 EPC) or indirectly (under Section 60(2) of the UK Patents Act).

The litigation arose after Actavis sought declarations of non-infringement of Eli Lilly's European patent, including for the designations in France, Italy and Spain, in the High Court.

Since the Court of Appeal decisions, there has been a further ruling in the litigation by Mr Justice Arnold, the first section of which summarises the litigation so far. There has also been litigation between the parties in Germany.

Glee

The Supreme Court recently agreed to hear another IP case - that between The Glee Club and Twentieth Century Fox over the Glee trade mark. 

This long-running litigation concerns Fox's alleged infringement of The Glee Club's trade mark in its Glee TV programme, which was launched in 2009. Last February, in a judgment written by Lord Justice Kitchin, the Court of Appeal upheld a finding that there was trade mark infringement but not passing off.

In a subsequent judgment, Kitchin addressed another question raised by Fox, namely whether series trade marks (as available in the UK and Ireland) are compatible with the requirement for "clarity and precision" under EU law. The Court of Appeal found that they are, but on December 8 the Supreme Court granted Fox permission to appeal.

No date has been set for the hearing, but it will probably be later this year. 

Court records indicate that The Glee Club is no longer seeking an injunction against Fox to stop sales of the Glee TV series, DVDs or related merchandise, but is pursuing damages.

Patents

Humira
A landmark biosimilars case
There are two Court of Appeal decisions in patent cases due this month.

The first is on January 12 and is in the dispute between Fujifilm Kyowa Kirin Biologics (FKB) and Abbvie. The former is seeking to market a biosimilar product that competes with Abbvie's Humira, which is the world's best-selling prescription drug. 

Abbvie owns a number of patents relating to the antibody adalimumab, and the basic patent expires on October 15 2018. FKB is seeking declarations of non-infringement of the secondary patents

The appeal is from Mr Justice Carr's March 2016 ruling that the UK court has jurisdiction to grant a declaration sought by FKB regarding whether its own product was obvious or anticipated. Carr said that "there is a reasonable prospect that the court at trial will decide to exercise its discretion to grant this declaration, in the unusual circumstances of this case".

Carr published another interim judgment in the case on December 29, rejecting a further attempt by Abbvie to avoid litigation in the UK, and the full trial is scheduled for January 16 this year. It's an important case for the biosimilars market, and is discussed further on the IP Kat blog here.

Mr Justice Birss
The second imminent judgment is in Shanks v Unilever, due on January 18. It concerns employee compensation and relates to patents filed in the 1980s. Both a UK IPO hearing officer and, on appeal, Mr Justice Arnold, found in favour of Unilever.

The most eagerly awaited patents ruling however is probably Mr Justice Birss's judgment in the latest Unwired Planet v Huawei and others case. The hearings took place over several weeks at the end of last year, and a decision is likely within the next two to three months.

This case is the climax of years of litigation between Unwired Planet and various mobile phone manufacturers, during which some patents have been upheld, others have been invalidated and some disputes have been settled. 

Specifically, the judgment is expected to address what constitutes a fair, reasonable and non-discriminatory (FRAND) royalty rate, and will be the first time this question has been determined in the UK. It is therefore likely to be of great interest to the IT and telecoms industries - though there is also a good chance it will be appealed, whatever the finding. Read more about this topic in our recent article by David Sant.

Trade marks

Finally, the next few months will see the latest skirmishes in two long-running trade mark battles. 

The Court of Appeal is soon due to hear Nestlé's appeal against last year's High Court decision in the Kit Kat case. In that ruling, which came following a CJEU referral, Mr Justice Arnold said that Nestlé's four-finger chocolate bar is not entitled to trade mark protection as the company has not shown that it has acquired distinctiveness such that consumers rely upon it to identify the product's origin.

The Court of Appeal hearing will likely last a few days and judgment can be expected in the spring. 

SEE ALSO: RUBIK’S CUBE: A TRICKY TRADEMARK PUZZLE
Play Interflora snakes & ladders (click on image)!

This year is also due to see the latest chapter in 

Interflora v Marks & Spencer, the epic litigation over Google AdWords that dates back to 2008. 

In November 2014, the Court of Appeal ordered a retrial in the case after setting aside Mr Justice Arnold's finding of trade mark infringement. Moreover, it said the retrial should be before a new judge. The latest published ruling in the dispute is a judgment by Mr Justice Birss denying an interim injunction pending the retrial, published in December 2014.

This article is part of a series we are publishing on upcoming cases in various jurisdictions and regions. It is based on the latest available information; however cases may subsequently be settled or withdrawn. 

If you have information about upcoming cases in this or other jurisdictions, please share it using the Comment button or by email.


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