Is permission to appeal granted more readily in patent cases? Should it be? These are the issues considered by the Court of Appeal in last week's decision concerning an application for permission to appeal in Teva UK Ltd v Boehringer Ingelheim Pharma GmbH & Co KG  EWCA Civ 1296. The answers in short are: (a) not really; and (b) not anymore.
The law on permission to appeal and the Pozzoli approach
CPR 52.3(6) provides for what seems to be a uniform and mandatory minimum standard for applications for permission to appeal:
"permission to appeal may be given only where—
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard."
However, the heading to paragraph 52.3.13 in the current edition of the White Book [every litigation solicitor's bible, muses the IP Kitten] provides that "Permission to appeal may be granted more readily in patent cases". The authority cited in support of this proposition is Pozzoli SPA v BDMO  EWCA Civ 588, in which Jacob LJ stated at para 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."
|The IP Kitten bidding a festive farewell to the Pozzoli approach|
The Court of Appeal was unimpressed with the application for permission noting that the applicant was illegitimately seeking to deconstruct the judge's overall evaluative judgment on the issue of obviousness. Permission to appeal was refused.