Hearing implant maker Med-El lost an appeal in its patent fight with Advanced Bionics at the England and Wales Court of Appeal today, May 24.
Lady Justice Kathryn Thirlwall, who handed down the judgment, also had sharp words for Med-El’s representatives over a reference to a deputy High Court judge’s background as a solicitor.
Med-El had challenged the High Court’s decision, issued by Mr Justice Campbell Forsyth in June 2022, to invalidate one of its patents covering cochlear implants.
Arguments began yesterday, May 23, and finished this morning.
The court, which dismissed Med-El’s appeal in full, handed down its verdict this afternoon.
Thirlwall heard the appeal alongside Lord Justices Richard Arnold and Colin Birss.
The full judgment has yet to be published, but Managing IP attended a virtual hand down.
According to Med-El’s counsel, Forsyth made an error in finding the patent obvious over a piece of prior art.
The prior art in question was another patent covering the design of cochlear implants and referred to as ‘Zimmerling’.
Sharp rebuke
At the end of proceedings, Thirlwall criticised Med-El’s representatives over how they referred to Forsyth in their skeleton argument.
The document referred to Forsyth’s job as a partner at Mishcon de Reya and noted that he was appointed to sit as a deputy High Court judge in late 2021.
Thirlwall said these details were irrelevant and “raised eyebrows” among the judges.
“Those matters shouldn’t have been in the skeleton argument.
“It’s no more appealing to do that than to say it was a very strong court,” she told Adrian Speck KC, who argued for Med-El.
Speck said the brief was only meant to identify the judge.
But Thirlwall replied: “His name would have done, and we had that on the judgment.
“I wouldn’t expect to see that sort of observation made in anyone’s skeletons before this court.”
In its own skeleton, Advanced Bionics criticised Med-El for highlighting Forsyth’s training as a solicitor.
“They could also have pointed out that he is a patent specialist of many years’ standing,” the Advanced Bionics brief said.
Solicitor judges are rare in England and Wales, where most High Court judges are former barristers.
An EPO board of appeal upheld an amended version of Med-El’s patent last September.
