Is obfuscation the best route to the UK Court of Appeal?
On a recent visit to London, a friend who is a leading IP litigator mentioned to me the Court of Appeal Pozolli decision ( EWCA Civ
Paragraph 10 provides interesting guidance about obtaining leave to appeal from a first instance decision in a patent case in the UK:
“10. I would add this about
permission to appeal in patent cases generally. Unless the case is very clear and can be
understood sufficiently readily in an hour or so, the better course is normally
for permission to be granted by the trial judge. For, unlike the trial judge, the Court of
Appeal judge(s) who have to decide whether permission should be granted (where the
trial judge has refused it) will not be immersed in the technology and evidence
in the same way as the trial judge.
Faced with but an incomplete understanding and a plausible skeleton
argument seeking permission, the Court of Appeal will generally be likely to
grant permission, even if later it discerns that the case is indeed clear.”
Two guidelines stand out: (1) a plausible skeleton argument and (2) a case which can not be understood sufficiently readily in an hour or so.
The problem with (2) is that it is risky. If your argument is made complicated, you risk losing the judges altogether (whether it be due to technical jargon, or lack of sympathy) . It must be right that a clear, concise and easy to understand argument will win the day in the majority of cases.