Patent judge David Kitchin announces retirement from Supreme Court

David Kitchin has announced his retirement from the Supreme Court and thus the UK judiciary, where he had presided over a variety of cases at different instances, including FRAND and transgenic mouse technology. Kitchin, who began his career as a barrister, has been a judge since 2005. Now the Lord Chancellor is looking to fill the vacant position, after the legal year ends in September.

3 February 2023 by Amy Sandys

Supreme Court patent-specialist judge David Kitchin, known as Lord Kitchin, has announced his retirement from the judiciary. ©Supreme Court of the United Kingdom

David Kitchin (67) is set to retire from his role as a UK Supreme Court judge on 29 September 2023, the court has announced on its website. He says, “It has been an enormous privilege and pleasure to serve as a full time Justice of the Court. This is the right time for me to step down and it will give me an opportunity to spend more time with my family and to pursue other interests.”

According to the Supreme Court press office, “the Lord Chancellor will convene an independent selection commission under rules set by Parliament to fill the vacancy resulting from the forthcoming retirement of Lord Kitchin.”

The Supreme Court, which has twelve judges, is the final court of appeal for all civil cases in the UK. It is also the last stage for criminal cases in England, Wales and Northern Ireland. Thus, the commission should select a new judge within the next year.

Supreme Court, David Kitchin

Supreme Court in London

David Kitchin hears Dabus

Kitchin has been active at the UK’s highest-instance court since October 2018, recently presiding over high-profile IP cases including rejecting permission for Oppo to further appeal in a jurisdictional challenge against Nokia. In his capacity as a Court of Appeal judge, Kitchin presided over the upholding of Colin Birss’ first-instance landmark FRAND ruling in the case between Unwired Planet and Lenovo.

Furthermore, in life sciences, Kitchin upheld Regeneron’s patents in the second instance in the case concerning transgenic mouse technology against Kymab, which was widely regarded as ground-breaking.

Before he retires in September, David Kitchin will hear the final instance in the case concerning AI system Dabus and its inventor, Stephen Thaler, against the Comptroller of Patents. In 2021, the Court of Appeal upheld UKIPO, the EPO and UK High Court judgments which all decided that a patent application cannot name Dabus as an inventor in its own right. On 2 March 2023, the Supreme Court will have the final say.

From the Bar to the bench

David Kitchin studied natural sciences and law at Cambridge University, before being called to the Bar in 1977. He became a silk in 1994, spending his career as a barrister at leading IP chambers, 8 New Square. In 2005, he left the set to become a judge in the High Court’s Chancery Division, the section of the UK judiciary which oversees patent cases. In 2007, he was elevated to the position of senior judge of the patents court. Between 2009 and 2011, he also served as the chancery supervising judge for the Midland, Wales and Western Circuits.

In 2011, the judiciary made Kitchin a judge at the Court of Appeal, before he moved to the Supreme Court in 2018. During his time as a chancery supervising judge, the EPO’s Enlarged Board of Appeal welcomed him as a member. Following his appointment as a Supreme Court judge, JUVE Patent interviewed David Kitchin, during which he spoke about recruitment at the courts.

He said, “High Court judges deal with complex cases and so they must have great ability. It is a challenging but also an extremely rewarding job. I was in practice as a barrister until I was 50 years old and have been a judge for 14 years, first in the High Court, then in the Court of Appeal, and most recently in the Supreme Court.

I have enjoyed all these positions enormously. They have also given me the opportunity to meet colleagues in many different countries throughout the world, and I have made wonderful friends. Being a judge is a great job and I hope others will see it as such.”