Martin Howe QC

CALL: 1978 | SILK: 1996
Martin Howe practises all areas of intellectual property and technology and extends into wider fields of EU law and commercial and public law.

Martin has a particular expertise in heavy technological cases, such as the internet, computers and IT, broadcasting and telecommunications technology, and biotech and pharmaceuticals: for details of his cases in these fields, see sections on Patents and on Copyright.

He has successfully concluded the major action Glaxo v Sandoz which involved two hearings in the Court of Appeal, a High Court 2 week trial, and issues of trade marks and passing off, interlinked with medicines regulatory law and practice.

His wide-ranging EU law practice focusses on free movement of goods and services and EU regulatory law. This has taken him to courts and tribunals outside the usual experience of IP practitioners, such as the Court of Appeal (Criminal Division), the Crown Court and the Admin Court exercising criminal jurisdiction.

He is the lead author of Russell Clarke and Howe on Industrial Designs (now in 9th Ed), and edited Halsbury’s Laws Title on Trade Marks. He is an Appointed Person to hear designs appeals from the UK IPO under the new appeal system of the Intellectual Property Act 2014.

  • Experience

    Patents & SPCs

    • T 844/18 CRISPR gene editing/Broad Institute (EPO Board of Appeal, 16 January 2020): gene editing patent held not entitled to priority of US provisional filing because not all US applicants were included on the PCT filing.
    • Motorola/Hytera, EP 3018922 (EPO Opposition Division 10 Sept 2019): selective routing of group communications among multiple telecommunications networks.
    • Case C-427/09 Generics (UK) Ltd v Synaptech Inc[2012] RPC 4: Supplementary Protection Certificate for galantamine for its second medical use for the treatment of Alzheimer’s.
    • MMI Research Ltd v Cellxion Ltd[2012] EWCA Civ 7: patent for method of intercepting mobile telephone calls and identifying mobile phones on GSM and other digital cellular networks.
    • Sanofi Aventis (Malaysia) Sdn Bhd v Fresenius Kabi (Malaysia) Sdn Bhd (High Court of Malaya, 2011): expert witness on patent law in this pharmaceutical patent case heard in Kuala Lumpur.
    • Biogen Inc v Medeva PLC [1997] RPC 1. First recombinant DNA technology case to reach the House of Lords – expression in mammalian and prokaryotic cells of Hepatitis B virus surface antigen for use in vaccines. Also related case in EPO Technical Board of Appeal: T886/91 Hepatitis B virus/Biogen Inc.

    Copyright & Conditional Access (Encryption)

    • BBC v MCPS and PRS (Sky intervening) [2018] EWHC 2931: ruling on the jurisdiction of the Copyright Tribunal over cross border broadcasting licences extending outside UK territory.
    • Case C-355/12Nintendo Co Ltd v PC Box SRL [2014] ECDR 6: the first preliminary reference on Article 6 of Directive 2001/29, where the Court ruled that protectable TPMs need not be located on the game chip itself but can be on the game console.
    • Case C‑406/10 SAS Institute Inc v World Programming Ltd [2012] 3 CMLR 4; [2012] RPC 31, where the Grand Chamber ruled that copyright in computer programs under the Software Directive 2009/24/EC does not prevent a competitor from replicating the functions of a program by observing its external behaviour. Further stages in the Court of Appeal at [2013] EWCA Civ 1482; [2015] ECDR17; [2014] RPC 8.
    • Joined Cases C‑403/08 and C‑429/08 Football Association Premier League v QC Leisure and Karen Murphy v. Media Protection Services Limited [2011] ECR I-9083: cross border satellite broadcasting case involving imported decoder cards – the Grand Chamber ruled that broadcasters’ conditional access rights (in encrypted broadcasts) were not infringed and that ‘transient copies’ defence applied to copyright infringement.
    • Nova Productions Ltd v Bell Fruit Games Ltd[2007] EWCA Civ 219: Court of Appeal in a decision of wide ranging importance ruled on copyright in video games, including program code and artistic copyrights in generated image.

    Trade marks & Brands

    • Sandoz International GmbH v Glaxo Wellcome UK Limited [2019] EWHC 1537 (Ch) & [2017] EWCA Civ 335 (ongoing): large scale action for Trade Mark infringement and passing off brought by Glaxo against Sandoz in relation to respiratory inhalers.
    • Argos Limited v Argos Systems Inc [2018] EWCA Civ 2211: trade mark infringement claim brought by the well-known UK catalogue retailer Argos, against a US based company which legitimately and coincidentally shared the Argos name but which used Google’s AdSense programme to direct adverts to UK consumers who mistakenly ended up at Argos US’s website.
    • Robyn Rihanna Fenty v Arcadia Group(t/a Topshop) [2013] EWHC 2310 (Ch) & [2015] EWCA Civ 3: claim of passing off against Topshop for selling T shirts bearing an image of Rihanna.
    • Tsit Wing v TWG Tea(Hong Kong Court of Final Appeal, 29 Jan 2016): the first case on registered trade mark infringement to reach the Court of Final Appeal in Hong Kong.
    • R (BAT) v Sec of State for Health[2016] EWCA Civ 1182: judicial review brought by the tobacco companies against the standardised packaging regulations, largely based on the argument that the regulations would effectively deprive them of their property rights in their trade marks by preventing use of the marks on cigarette packs.
    • Case T 272/13 Max Mara Fashion Group v OHIM(3 Dec 2014) in the EU General Court on appeal from an OHIM Board of Appeal, trade mark was held not to be confusingly similar to Max Mara’s registered trade mark.

    Design Rights

    • Sealed Air Ltd v Sharp Interpack Ltd[2013] EWPCC 23: a registered and unregistered design case relating to fruit punnets.
    • Alfa Laval Tumba AB v Separator Spares International Ltd[2012] EWCA Civ 1569: design rights relating to marine separator machines; this appeal involved arguments on jurisdiction under the Brussels Regulation.
    • Societa Esplosivi Industriali SpA v Ordnance Technologies (UK) Ltd [2007] EWHC 2875 (Ch): regarding shaped charge designs for multiple warhead missiles.
    • Stoddard Intnl Ltd v Wm Lomas Carpets Ltd[2001] FSR 44: regarding carpet designs.
    • Billhöfer Maschinenfabriek GmbH v TH Dixons [1990] FSR 105: regarding design drawings for laminating machinery Issues of eye appeal and substantial part.

    Trade Secrets & Confidentiality

    • SuperGroup PLC v Jack Wills (2018): confidential information regarding SuperGroups best-selling products
    • Focal Image Limited v TNQ Technologies (2018): confidential information relating to source code for typesetting software for scientific and mathematical notation

    Data Protection & Privacy

    • Rugby Football Union v CIS Ltd (formerly Viagogo Ltd)[2012] UKSC 55: the first ever application of the EU Charter of Fundamental Rights at UK Supreme Court level in the balancing of rights of individuals to protect their personal data against the claims of rights owners for disclosure under Norwich Pharmacal in order that they could pursue actions.
    • Johnson v Medical Defence Union Ltd [2007] EWCA Civ 262: the claimant, a surgeon and long standing member of the MDU, was removed from membership without warning under an internal ‘risk assessment’ procedure, despite the fact that no claims for negligence had been made against him in the course of his career.

    IT & Telecoms Disputes

    • Nova Productions Ltd v. Bell Fruit Games Ltd [2007] EWCA Civ 219: on the legal protection of video games software.
    • Ibcos Computers Ltd v Barclays Mercantile [1994] FSR 275: this case showed that, as well as individual computer programs being protected by copyright, the way they are linked together (structured) may, in some cases, also be protected.
    • Nintendo Co Ltd v Playables Ltd [2010] EWHC 1932 (Ch): regarding the sale of circumvention devices contrary to s. 296ZD and s. 296 of the CDPA 198

    FRAND & Competition Law

    • Viagogo v The Competition and Markets Authority (Competition Law) (2019): regarding possible beaches of consumer law
    • FAPL v Luxton [2016] EWCA Civ 1097: about whether a defendant who uses a domestic decoder card obtained from another Member State can have a defence to copyright infringement if he was prevented from obtaining a commercial grade card as a result of an unlawful agreement to partition markets contrary to Article 101 TFEU.

    • R (BAT) v Sec of State for Health[2016] EWCA Civ 1182: judicial review brought by the tobacco companies against the standardised packaging regulations, largely based on the argument that the regulations would effectively deprive them of their property rights in their trade marks by preventing use of the marks on cigarette packs.
    • Rugby Football Union v CIS Ltd (formerly Viagogo Ltd)[2012] UKSC 55: the first ever application of the EU Charter of Fundamental Rights at UK Supreme Court level in the balancing of rights of individuals to protect their personal data against the claims of rights owners for disclosure under Norwich Pharmacal in order that they could pursue actions.
    • Joined Cases C-267 & 268/95 Merck v Primecrown Ltd [1996] I-ECR 6285: the leading ECJ case on the parallel importation of patented products between Member States.
  • Education & awards
    • 1973 1977: Trinity Hall, Cambridge BA (Hons) Engineering and Law
    • 1979: MA.
    • Entrance scholarship to Cambridge 1973; renewed scholarship 1975; Baker Prize for Engineering 1974 (first on Cambridge University examination list, Engineering Preliminary Exams).
    • 1977 1978: Bar Exams course Everard ver Heyden Foundation Prize; 1978 (for Bar Exams course advocacy skills); Harmsworth Exhibition 1976; Astbury Law Scholarship 1979.
  • Appointments
    • Appointed Person to hear appeals from the UK IPO under the Registered Designs Act 1949 (as amended) (2015- current).
  • Professional memberships
    • Intellectual Property Bar Association (IPBA)
    • Bar European Group (BEG)
    • The Intellectual Property Lawyers Organisation (TIPLO)

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