Context: Late last year, the Unified Patent Court’s (UPC) Court of Appeal (CoA) rejected Alexion’s appeals of the Hamburg Local Division’s (LD) denial of preliminary injunctions (PIs) against Amgen and Samsung Bioepis (December 23, 2024 ip fray article). The patent-in-suit was EP3167888 (“Treatment of paroxysmal nocturnal hemoglobinuria patients by an inhibitor of complement”).
What’s new: Yesterday (May 20, 2025), Mr Justice Richard Meade of the High Court of Justice for England & Wales (EWHC) handed down his judgment in two cases over the UK part of the same patent (BAILII link). Like in the UPC, but after a full trial, Alexion failed to prevail over Amgen and Samsung Bioepis. Mr Justice Meade agreed with the defendants on claim construction, and on the basis of that same claim construction Alexion conceded that the patent would have to be revoked. Non-technical defenses (judicial estoppel, approbation, reprobation) were not reached.
Direct impact: Alexion can appeal this decision, with a focus on claim construction. Whatever the EWHC or the UPC’s CoA have decided will not be binding on the England & Wales Court of Appeal (EWCA), but it will be an uphill battle given that more than one decision relating to this patent has been negative by now.
Wider ramifications: A short section toward the end of the UK judgment notes that its claim construction and that of the UPC’s CoA are consistent. Mr Justice Meade writes: “That fortifies me in my conclusion but is not necessary to it.” But unlike the UPC in the fast-track proceedings triggered by Alexion’s application for provisional measures (PI motion), Mr Justice Meade had the benefit of a full trial and a fully developed body of evidence, which warranted a different conclusion regarding the sufficiency of the claim. In the end, Alexion loses either way, and like in the UPC, Alexion has drawn shifting-sand criticism: “The UPC proceedings also further illustrate Alexion’s ever-changing positions, but that is not material to my decision-making.”
If not for Brexit, Mr Justice Meade might actually be sitting on the UPC now. With his patent expertise, he would definitely have been a first-rate candidate. European patent judges know each other (from their annual meetings in Venice, Italy, and various other events). Presumably Mr Justice Meade thinks highly of the competence of one or more members of the UPC CoA panel that adjudicated Alexion’s denial-of-PI appeal.
At the same time, the level of detail of the decision leaves no doubt that Mr Justice Meade reached his conclusions independently, based on his own reasoning. That said, he’s even more comfortable with his claim construction, knowing that other patent-specialized European judges converged on it.
It would be a positive development if the UPC and the UK judiciary took a stronger interest in each other’s judgments. That should not compromise anyone’s independent decision-making, but they should look at each other’s decisions as potentially persuasive authority.
Last summer, Mr Justice Meade wrote a letter to two UPC LDs and two German courts to give them a heads-up as to his forthcoming FRAND (fair, reasonable and non-discriminatory licensing) determination in Panasonic’s cases against Xiaomi and OPPO (July 31, 2024 ip fray article). There were no signs of the recipients being inclined to await the UK FRAND determination or to take it into consideration when deciding on Panasonic’s prayers for injunctive relief. In the end it was an interim-license declaration by the EWCA (October 3, 2024 ip fray article) that resulted in settlements between Panasonic and Xiaomi as well as OPPO. Only because of some delays in the settlement process between Panasonic and OPPO, a decision by the Mannheim LD still came down (November 22, 2024 ip fray article). It was the UPC’s first-ever standard-essential patent (SEP) injunction in a case where a FRAND defense had been raised.
What happened thereafter is that the EWCA made interim-license declarations available to pretty much anyone who asked for them. ip fray has criticized this as judicial imperialism, and has in turn drawn criticism from a well-known member of the UK judiciary (April 27, 2025 ip fray article), which is par for the course.
Then there has been (which is not the UPC’s “fault”) the European Court of Justice decision in BSH Hausgeräte v. Electrolux (February 25, 2025 ip fray article). The UPC is now also exercising long-arm jurisdiction over the infringement of the UK parts of patents granted by the European Patent Office (EPO), provided that the defendant (or at least an anchor defendant) is domiciled in UPCland. It would be understandable if UK judges did not like this either.
The UK remains an important patent enforcement jurisdiction even if some patentees may now seek remedies with respect to the UK market in the UPC or in the national courts of EU member states.
It would be conducive to the development of European patent case law as a whole if the positive tone of Mr Justice Meade’s reference to the UPC CoA decision in the Alexion cases ushered in a new phase in which patent-specialized judges on both sides of the English Channel view parallel litigation as beneficial, without encroaching on another jurisdiction. BSH Hausgeräte is, however, EU case law now and binding on the UPC.
Counsel
The following lawyers represented the winning defendants in the EWHC:
Amgen: Osborne Clarke’s Tim Harris, Siân Edmonds, Matthew White and Ryan West; and barristers Andrew Waugh KC and Katherine Moggridge.
Samsung Bioepis: Simmons & Simmons’s Scott Parker, Elsa Glauert and Alexander Gardiner; and barristers Justin Turner KC and James Whyte.
Those teams work closely with their UPC colleagues, and some of them participated actively in the UPC and/or EPO opposition proceedings.