Teva UK Ltd v Boehringer Ingelheim Pharma GmbH & Co KG

Applications for permission to appeal in patent cases are governed by the ordinary procedural criteria. Technical complexity, and the fact that the trial judge is immersed in specialist evidence, do not justify a more lenient approach. The court must be satisfied that the appeal has a real prospect of success or that there is some other compelling reason for it to be heard. The trial judge’s specialist understanding may assist in identifying an arguable point, and full reasons for refusing permission are valuable. But complexity alone cannot replace the required assessment. The Court of Appeal therefore held that the approach suggested in Pozzoli should no longer be followed.

Boehringer Ingelheim Pharma GmbH & Co KG applied for permission to appeal from Morgan J’s decision in a patent revocation action, reported as [2015] EWHC 2963 (Pat). The proposed appeal challenged findings that it would be obvious to pursue the use of hydroxypropyl methyl cellulose capsules and that a moisture level below 2 per cent was arbitrary.

The Court of Appeal also reconsidered the practice, derived from Pozzoli SPA v BDMO SA, of granting permission more readily in technically complex patent cases. The central issue was whether technical complexity justified departing from the ordinary permission criteria.

1. Permission refused. The proposed grounds had no real prospect of success. The application sought illegitimately to deconstruct the judge’s overall evaluative judgment on obviousness.
2. CPR 52.3(6) establishes the applicable minimum standard: permission may be given only where the appeal has a real prospect of success or there is some other compelling reason why it should be heard. Patent cases are not subject to a more lenient standard.
3. The specialist and technical nature of patent litigation explains why the trial judge is well placed to identify whether an arguable appellate point exists. It does not justify granting permission merely because the Court of Appeal may face an incomplete understanding of the technology. The changes made by CPR 52.5, including paper determination and the possibility of directing an oral hearing where fairness requires it, mean that the Court of Appeal is now better placed to obtain assistance from the parties.
4. The approach in Pozzoli SPA v BDMO SA should no longer be followed. Technical complexity is not a factor which trial judges should take into account in favour of granting permission.
5. On the patent merits, the judge was entitled to find that the naturally lower moisture content of hydroxypropyl methyl cellulose gave an advantage over gelatine and that pursuing that material was worthwhile. He was also entitled to conclude that there was no significance in achieving a moisture level below 2 per cent rather than above it. The Court of Appeal found no error of principle warranting intervention in those evaluative findings.
6. Lord Justice Kitchin agreed with Lord Justice Floyd’s judgment.

• Court of Appeal (Civil Division) — Permission to appeal refused.
• High Court of Justice, Chancery Division (Patents Court) — Morgan J decided the patent revocation action; the decision is cited as [2015] EWHC 2963 (Pat).