Today, Richard Arnold was sworn in as the new IP judge at the UK Court of Appeal. This leaves an opening for a new patent judge to take a seat at the High Court. However, JUVE Patent research suggests that no immediate candidate is willing to join the judicial bench.
Arnold’s promotion is the latest in a succession of circumstances to impact the UK judiciary. The patent courts have seen some turbulence over the past year. In October 2018, the Supreme Court welcomed Court of Appeal patent specialist judge David Kitchin to its ranks. Richard Arnold made the leap from the High Court to fill Kitchin’s role in June 2019. Today, Arnold’s addition to the Court of Appeal judiciary becomes official.
In July, well-regarded High Court patent judge Henry Carr died. One London lawyer told JUVE Patent, “Everyone liked Henry. No-one wanted to think about the question of who his successor might be.”
London laywers say the High Court has been shaken by the loss of two such well-regarded patent judges in a short space of time. Currently, only Colin Birss remains.
For now, solicitors and barristers posit the increased use of deputy judges in the High Court as a solution. Experienced barristers such as Douglas Campbell and Richard Meade are still delivering UK High Court and IPEC judgments, something they have done prior to now. But recently, lawyers describe both Campbell and Meade as providing “solid judgments.” They are also regarded as being “stand-out” among the various deputies.
Another solicitor in London told JUVE Patent, “We need strong deputy judges like Richard Meade to sit more often. This will help avoid any delay at the court.” Richard Hacon, current IPEC judge, is also contributing to jurisprudence in the higher courts. For the most part, his expertise has also been well-received among London’s patent lawyers.
However, through this method arises issues of timeliness and availability. Naturally, the most experienced barristers are the most in-demand – both in and out of the judge’s chair. Using deputy judges bridges the gap temporarily. But many patent lawyers note that, to ensure stability and continued business, a more permanent solution is needed.
An overriding concern in the UK patent community has been the potential impact of a hard Brexit on its business. But, according to some UK patent lawyers, scarcity of patent judges on the judicial bench is causing more of a stir. The increasing number of FRAND cases being heard in the UK courts means the matter is especially urgent, says one patent attorney at a London firm.
Next week, the Supreme Court sits for the long-awaited Unwired Planet vs. Huawei hearing, to determine jurisdiction when applying a global FRAND licence. The Court of Appeal last year upheld a decision by High Court judge Colin Birss that subjecting an implementer to an injunction was justified, if the implementer did not accept a global licence as FRAND.
Current Supreme Court judge, David Kitchin, is not permitted to hear the case. He presided over the upholding of the High Court decision in his previous capacity of Court of Appeal judge.
From today, Richard Arnold will be styled as Lord Justice Arnold, where previously he was Mr Justice Arnold. “It will be interesting to see what he does with some of the more unsettled issues of patent law in the next few years,” a lawyer told JUVE Patent.
An IP barrister based in London says Arnold’s intelligence is what sets him apart as a high-quality judge. “He has an amazing breadth of knowledge displayed in many long and scholarly judgments.”
However, a law firm partner noted that some in the patent market might be surprised at the decision. Another barrister told JUVE Patent, “It will be interesting to see how Arnold performs in the Court of Appeal and how he interacts with the two other members of an appeal court.”
Solicitors and barristers are hopeful that who joins Colin Birss at the High Court will soon become clear.
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