Hewlett-Packard GmbH & Anor v Waters Corporation & Anor

Permission to appeal should not be granted where the issues raised do not provide an appropriate vehicle for resolving a wider question of legal principle. The possible significance of a point for a higher court does not, by itself, justify granting permission. The suitability of the proposed appeal must be assessed in light of the issues actually arising in the case.

Hewlett-Packard GmbH and Agilent Technologies Deutschland GmbH appealed from a decision of Mr Justice Pumfrey in the Patents Court. The proposed appeal concerned issues of patent infringement and the application of the Protocol. The court noted a possible difference between the domestic position and that of a German court, attributable in part to different procedures for determining infringement and validity. The central question was whether this case was an appropriate vehicle for considering the wider principles arising from Wheatley and the application of the Protocol.

1. Permission to appeal was refused. The Court of Appeal did not consider the case an appropriate vehicle for further consideration by the House of Lords.
2. Although the principles applied in Wheatley might be of interest to the House of Lords, the infringement issues raised in the present case were unsuitable for resolving that wider question.
3. The apparent difference between the English and German positions was likely attributable to procedural differences, including the German system in which different courts determine infringement and validity. In that context, the respondents’ submission concerning the identified problem and its proposed solution did not apply in Germany.
4. The House of Lords would therefore have to determine separately whether a suitable case existed in which to examine the application of the Protocol.

• High Court of Justice, Chancery Division, Patents Court: Decision of Mr Justice Pumfrey, from which the appellants sought permission to appeal.
• Court of Appeal (Civil Division): Permission to appeal refused.