The England and Wales Judiciary recently announced the promotion of eight High Court judges to the Court of Appeal. The appointees include two Chancery Division judges: Mr Justice Nugee and Mr Justice Birss.
We want to give a special shout-out to Birss, who oversaw the reformation of the Patents County Court (now known as the Intellectual Property Enterprise Court or the IPEC). Birss is, of course, well known for his patent judgments, most notably the Unwired Planet v Huawei judgment, but he has also dealt with some interesting soft IP cases such as Warner Music UK v TuneIn and non-IP cases such as Travelodge Ltd v Prime Aesthetics (an insolvency matter). He is also very active in the IP community. Following the elevation of Arnold LJ to the Court of Appeal last year, Birss took over as the judge in charge of the Patents Court.
Nugee has also dealt with a few IP cases in the division (his latest Patents Court judgment on BAILII is Lufthansa Technik AG v Astronics Advanced Electronics Systems). Congratulations to all the judges for their well-deserved promotion. See the full list of the appointees here.
The Judiciary elevated Lord Kitchin to the Supreme Court in 2018, a move seen in the IP community as a replacement for Lord Neuberger (who retired in 2017), and in the space of 12 months it has moved Arnold and Birss to the Court of Appeal.
These decisions are normally made to "fill forthcoming vacancies" but only a few would know whether there was also an intention to maintain the number of IP judges at the appellate level. In any case, I guess many in the IP community would be happy to have a strong IP bench at the appellate level, but we’ll soon return to having two IP judges in the Court of Appeal when Floyd LJ retires due to the judicial mandatory retirement age (see the government’s consultation on this here).
The IP community will have to enjoy this experience while it lasts because it's rare to see a Court of Appeal IP case/judgment with three specialist IP judges (the only one I know of is Richter Gedeon Vegyeszeti Gyar RT v Generics (UK) Ltd). The Richter Gedeon case is also remarkable because it was the last judgment of Sir Robin Jacob (who retired from the Court of Appeal in 2011 but continued to handle its work from time to time) and it featured Arnold, who was then a High Court judge. Perhaps, we’ll still see Floyd in IP cases after his retirement.
Last year, Managing IP interviewed IP practitioners for their views on Arnold and the late Mr Justice Carr and their successors. With the departure of Birss, the Judiciary faces a huge challenge to replace three highly-regarded patent judges in the Chancery Division.
The division needs at least two full-time IP judges with patent experience to support Judge Hacon, who is also the Presiding Judge of the IPEC. Considering the deputy judges in the division and the IP Bar (Douglas Campbell QC, Daniel Alexander QC and Roger Wyand QC are among the barristers mooted as candidates), it's reasonable to conclude that there is no shortage of candidates. The question is whether those candidates would be willing to take on the role (I won’t be surprised if Campbell gets the nod).
Also, one would be forgiven for thinking that Hacon will be the front-runner to lead the Patents Court, if he is interested in the role. If that happens, there's an expectation that the Judiciary will appoint someone to replace Hacon as the head of the IPEC. The above-named barristers are also suitable to lead the IPEC, but if a pure soft IP practitioner is required then the Judiciary may well go for Judge Melissa Clarke or Judge Amanda Michaels.
Until their replacements are appointed, we may well see Lord Justices Arnold and Birss stepping in from time to time to help Hacon and the deputy judges deal with the Patents Court’s workload.
The Judiciary now has three big patent shoes to fill in the Patents Court.