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Lords has delivered two judgments in two weeks that have totally reshaped UK patent law.
You may not believe this, but patent law just got sexy. The House of Lords has delivered two judgments in two weeks that have totally reshaped UK patent law.
The man at the centre of this upheaval is Lord Hoffmann, possibly the most influential person working in IP law in the UK. In 1989, Lord Hoffmann, then Mr Justice Hoffmann, set the standard that all patent lawyers have since followed the Improver or Protocol test. In November he disowned it in Kirin-Amgen v Aventis & Transkaryotic Therapies (TKT). In doing so, he brought UK patent law into line with Europe and, as he saw it, risked throwing lawyers into a sea of interpretative uncertainty.
Taylor Wessing partner Gary Moss advised Kirin-Amgen. Although he is obviously disappointed to have lost the case, he is really angry about the EU law principles underlying the judgment, which set aside many years of jurisprudence of UK patents.
Bird & Bird partner David Wilson, who was representing Aventis and TKT, believes the alignment with Europe to be a good thing. That Moss and Wilson should beg to differ is unsurprising considering they have spent five years arguing this case with one another. However, the EU law issue is quite separate from Lord Hoffmanns sea of uncertainty point, and most lawyers approve of those changes.
Lord Hoffmanns 1989 Protocol was a three-stage test that many patent lawyers have been slavishly following; but recent judgments by Mr Justice Laddie and Lord Justice Jacob have questioned the validity of the Protocol. Lord Hoffmann has now laid it to rest, albeit in a manner that some find difficult.