Med-El loses UK appeal in Advanced Bionics fight

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Med-El loses UK appeal in Advanced Bionics fight

Entrance to the Royal Court of Justice

The Court of Appeal had stern words for Med-El’s representatives after they highlighted a deputy judge’s background as a solicitor

Hearing implant maker Med-El lost an appeal in its patent fight with Advanced Bionics at the England and Wales Court of Appeal today, May 24.

Lady Justice Kathryn Thirlwall, who handed down the judgment, also had sharp words for Med-El’s representatives over a reference to a deputy High Court judge’s background as a solicitor.

Med-El had challenged the High Court’s decision, issued by Mr Justice Campbell Forsyth in June 2022, to invalidate one of its patents covering cochlear implants.

Arguments began yesterday, May 23, and finished this morning.

The court, which dismissed Med-El’s appeal in full, handed down its verdict this afternoon.

Thirlwall heard the appeal alongside Lord Justices Richard Arnold and Colin Birss.

The full judgment has yet to be published, but Managing IP attended a virtual hand down.

According to Med-El’s counsel, Forsyth made an error in finding the patent obvious over a piece of prior art.

The prior art in question was another patent covering the design of cochlear implants and referred to as ‘Zimmerling’.

Sharp rebuke

At the end of proceedings, Thirlwall criticised Med-El’s representatives over how they referred to Forsyth in their skeleton argument.

The document referred to Forsyth’s job as a partner at Mishcon de Reya and noted that he was appointed to sit as a deputy High Court judge in late 2021.

Thirlwall said these details were irrelevant and “raised eyebrows” among the judges.

“Those matters shouldn’t have been in the skeleton argument.

“It’s no more appealing to do that than to say it was a very strong court,” she told Adrian Speck KC, who argued for Med-El.

Speck said the brief was only meant to identify the judge.

But Thirlwall replied: “His name would have done, and we had that on the judgment.

“I wouldn’t expect to see that sort of observation made in anyone’s skeletons before this court.”

In its own skeleton, Advanced Bionics criticised Med-El for highlighting Forsyth’s training as a solicitor.

“They could also have pointed out that he is a patent specialist of many years’ standing,” the Advanced Bionics brief said.

Solicitor judges are rare in England and Wales, where most High Court judges are former barristers.

An EPO board of appeal upheld an amended version of Med-El’s patent last September.

more from across site and ros bottom lb

More from across our site

A UK government consultation on AI and copyright, a patent blow for Lenovo and a trademark row over cider were among the big talking points this week
Our most popular stories of the year included a rundown of the 50 most influential people in IP, our in-house ones to watch, and UPC news
Awards
It is time to submit nominations for the sixth annual Life Sciences Awards EMEA
Keejeong Kim, who returned to Yulchon after a four-year gap, said he was intrigued by the opportunity to work on neighbouring areas of law to IP
The IP consulting firm hopes to expand its services and outreach with the support of investors VSS Capital Partners and Century Equity Partners
This update includes a ruling from the Court of Appeal, a judgment of the Paris Local Division, news of upcoming hearings, and predictions for 2025
US counsel review the key copyright and trademark trends of 2024, including generative AI disputes and SCOTUS cases
If 2024 is anything to go by, the next 12 months could see more IP firms seek investment opportunities while IP lawyers are increasingly likely to work alongside other functions
Practitioners reflect on the impact of USPTO guidance, as well as PTAB and litigation trends
We discuss Managing IP’s 50 most influential people in IP list and look back on the biggest talking points in the last month
Gift this article