Adrian Speck QC and James Abrahams recently appeared for HTC, in its appeal from the first instance judgment of Roth J declining to order a stay of infringement proceedings in the Patents Court pending the outcome of opposition proceedings in the European Patent Office (“EPO”).
In considering the appeal, Floyd LJ, with whom Patten and Rafferty LJJ agreed, clarified the impact that the judgment in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2013] UKSC 46 has had on the guidance in Glaxo Group Ltd v Genentech Inc [2008] EWCA Civ 23 as to the granting of such stays.
The Court of Appeal made clear that while the Virgin judgment required that the Glaxo guidance be revised, the guidance was not now without utility. The court reaffirmed that grant of a stay of the national proceedings is the default position. Paragraph [68] of the judgment recasts the guidelines for exercise of the Patent Court’s discretion to grant stays.