Section 96: The Patents Court [Repealed]

Section last updated: July 2012

96.01

Section 96 provided for the establishment of a Patents Court as part of the High Court of Justice in England and Wales, to replace the old Patents Appeal Tribunal.

96.02

Section 96 has been repealed by the Supreme Court Act 1981 (c.54) but its contents have been substantially re-enacted by provisions of that Act, which are quoted below. These provisions were amended by the Constitutional Reform Act 2005 (c.4) to provide for the Lord Chief Justice to appoint judges and deputy judges in the High Court. Proceedings before the Patents Court are regulated by the Civil Procedure Rules, particularly Part 63 titled “Patents and other Intellectual Property Claims” (CPR63). This part was introduced into the Civil Procedure Rules 1998 by the Civil Procedure (Amendment No 2) Rules 2002 (S.I. 2002 No. 3219) and entered into force on 1 April 2003. Part 63, together with the Practice Direction supplementing CPR 63, superseded Practice Direction 49E. Further information concerning procedures before the court are detailed in The Patents Court Guide available through the website of the Court Service (http://www.hmcourts-service.gov.uk/).

Supreme Court Act 1981, section 6(1)

There shall be - (a) as part of the Chancery Division, a Patents Court; and (b) as parts of the King’s Bench Division, an Admiralty Court and a Commercial Court.

Supreme Court Act 1981, section 62(1)

The Patents Court shall take such proceedings relating to patents as are within the jurisdiction conferred to it by the Patents Act 1977, and such other proceedings relating to patents or other matters as may be prescribed.

Function of the Patents Court

96.03

s.130(1) is also relevant

The Patents Court is thus part of the Chancery Division of the High Court. Section 97 of the Patents Act 1977 provides for appeals to the Patents Court from many decisions of the comptroller under the Act or rules. Many other sections of the 1977 Act provide for proceedings (eg concerning alleged infringement of patents) to be brought in the court; as respects England and Wales, the “court” means the High Court (where proceedings are taken by the Patents Court) or a Patents County Court (as set up under ss.287-292 of the CDP Act).

96.04

CPR 63.3 is also relevant

Under section 61 of the Supreme Court Act 1981 and Schedule 1 to that Act, all causes and matters in the High Court relating to patents, trade marks, registered designs or copyright are assigned to the Chancery Division. Proceedings in the High Court under the Patents Act 1977, the Registered Designs Act 1949 and the Defence Contracts Act 1958, and all proceedings for the determination of a question or the making of a declaration relating to a patent under the inherent jurisdiction of the High Court, shall be assigned to the Chancery Division and taken by the Patents Court.

Supreme Court Act 1981, section 6(2)

The Judges of the Patents Court, of the Admiralty Court and of the Commercial Court shall be such of the puisne judges of the High Court as the Lord Chief Justice may, after consulting the Lord Chancellor, from time to time nominate to be judges of the Patents Court, Admiralty Judges and Commercial Judges respectively.

Judges

96.05

s.97(2) is also relevant

The judges of the Patents Court are normally High Court judges specially nominated by the Lord Chief Justice, after consulting the Lord Chancellor. They generally sit singly but can, for the purpose of hearing appeals from decisions of the comptroller, sit en banc.

96.06

Section 63 of the Supreme Court Act 1981 provides that any business assigned to one or more such specially nominated judges of the High Court may during vacation, illness or absence or for any other reasonable cause be dealt with by any judge of the High Court named for that purpose by the Lord Chief Justice, after consulting the Lord Chancellor. There is also provision for the appointment of deputy judges on an ad hoc basis by the Lord Chief Justice, after consulting the Lord Chancellor under Section 9(4) of the Supreme Court Act 1981.

Supreme Court Act 1981, section 70(3)

Rules of court shall make provision for the appointment of scientific advisers to assist the Patents Court in proceedings under the Patents Act 1949 and the Patents Act 1977 and for regulating the functions of such advisers.

Scientific advisers

96.07

CPR 63PD para 4.10 CPR 35.15

The Civil Procedure Rules provide that in any proceedings under the 1977 Act, the Patents Court may direct that an independent scientific adviser be appointed to assist the court. Rule 35.15 of the Civil Procedure Rules covers the duties and remuneration of advisers or assessors. The adviser shall assist the court in dealing with a matter for which the adviser has skill and experience, and shall take part in the proceedings as the court may direct. In particular, the court may direct the adviser to prepare a report for the court on any matter at issue in the proceedings, and direct the adviser to attend the whole or any part of the proceedings to advise the court on any such matter. (The Patents Court may also order the Office to provide reports under s.99A, see 99A.01-04.

96.08

Sup.Ct. Act81, s.54(9)

The above provisions regarding scientific advisers, and the provisions below regarding their remuneration, also apply in relation to the Court of Appeal in proceedings on appeal from decisions in such Patents Court proceedings.

Supreme Court Act 1981, section 70(4)

The remuneration of any such adviser shall be determined by the Lord Chancellor with the concurrence of the Minister for the Civil Service and shall be defrayed out of money provided by Parliament.