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.
|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.