Journal Article

Appeal court reluctance: complex evidence, obviousness and related matters

Peer Watterson

in Journal of Intellectual Property Law & Practice

Volume 7, issue 5, pages 358-372
Published in print May 2012 | ISSN: 1747-1532
Published online March 2012 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jps021
Appeal court reluctance: complex evidence, obviousness and related matters

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Peer Watterson is a European Patent Attorney and a Chartered Patent Attorney working for Marks and Clerk in Luxembourg.

In this article the author explores matters related to civil procedure, appeals and requirements to succeed on appeals dealing with complex issues of law and fact. He focuses on patent law, obviousness and appeals relating to findings of obviousness.

The article considers the factors taken into account by an appeal court when considering whether or not to review the conclusions reached by the trial court. There is a recognised reluctance on the part of the appeal court to revisit evaluations of evidence which are particularly complex. Furthermore, in a principle formulated by the House of Lords in Biogen v Medeva [1997] RPC 1, the appeal court will only reconsider a finding concerning obviousness where this involves an ‘error of principle’. This principle has been applied to a number of other legal enquiries. The extent and interrelation of these two grounds for appeal court reluctance is considered and reviewed.

To determine the nature and extent of the Biogen principle and, in particular what comprises 'errors of principle', a review of case law concerning appeals relating to findings of obviousness has been conducted and the results reported. The application of the Biogen principle to other aspects of patent law has been considered, together with some general principles which may be considered when applying the test to other complex issues in patent law and further afield.

Journal Article.  11755 words. 

Subjects: Arbitration ; Intellectual Property Law

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