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Henry Carr QC

Henry Carr practises in all fields of Intellectual Property, with a particular concentration on patent, trade mark, design and computer litigation.   Since taking silk in 1998 he has led numerous trials in the High Court and regularly presented cases in the Court of Appeal. Many of his cases have been referred to the Court of Justice of the European Union, where he has appeared on many occasions.

He is generally regarded as a ‘star’ QC and at the 2013 Chambers and Partners Bar Awards received the award for ‘IP/IT Silk of the Year’ for the third time. He was also ranked in the Top 100 senior barristers at the Bar of England and Wales across all areas of law by Chambers and Partners 2013.

In 2007 Henry was appointed as a Deputy High Court Judge of the Chancery Division.  In 2010 he was appointed Deputy Chairman of the Copyright Tribunal.  In November 2011 he was elected Chairman of the IP Bar Association, a position which he took up in January 2012.

Recent Work

Merck KGaA v Merck Sharp & Dohme Corp & Ors [2014] EWHC 3867 (Ch)

Merck KGaA v Merck Sharp & Dohme Corp & Ors [2014] EWHC 3867 (Ch)

A preliminary issue was ordered in the context of a trade mark and contract dispute between Merck KgaA and Merck Sharpe and Dohme and others.  The parties had entered into a co-existence agreement that was silent as to the proper law governing the agreement.  Applying the common law authorities to the agreement (because it dated from before the Rome Conventions) the Court held that the proper law of the contract was German law.  That was the system of law with which the transaction had its closest and most real connection.  Henry Carr QC and Benet Brandreth acted for the successful party Merck KgaA.

[2014] EWHC 3867 (Ch)

Teva Pharmaceutical Industries Ltd v LEO Pharma [2014] EWHC 3096 (Pat)

Teva Pharmaceutical Industries Ltd v LEO Pharma [2014] EWHC 3096 (Pat)

A claim for revocation by TEVA of two patents covering LEO’s fixed combination of calcipotriol and betamethasone for the dermal treatment of psoriasis.   

The invention overcame differing pH dependent stabilities of the two actives by using polyoxypropylene-15-stearyl ether as a solvent in a non-aqueous formulation.  Polyoxypropylene-15-stearyl ether was not part of the skilled formulator’s common general knowledge. TEVA nevertheless asserted that the invention was obvious over prior art (Turi) disclosing its use as a solvent for betamethasone alone.   

Interestingly, Birss J found that the invention was not obvious if Turi was taken as a starting point for further development, but was obvious if Turi was held back until the step of solvent selection in an otherwise common general knowledge formulation programme.  He held the patents invalid on this latter basis.  He accepted when considering permission to appeal that this approach raised an important point of principle on obviousness.

Henry Carr QC and Tom Alkin acted for Leo.

 [2014] EWHC 3096 (Pat)

IPCom v. HTC Europe & others [2013] EWCA Civ. 1496

IPCom v. HTC Europe & others [2013] EWCA Civ. 1496

Henry Carr QC, Brian Nicholson, and Kathryn Pickard acted for IPCom, successfully resisting HTC’s appeal against Mr Justice Roth’s refusal to stay infringement and validity proceedings on a European Patent (UK) until the conclusion of co-pending European Patent Office Opposition Proceedings.  In this important decision, the Court of Appeal undertook a careful review of the so-called Glaxo Guidance (following the observation of the Supreme Court in Virgin Atlantic Airways v. Zodiac Seats UK [2013] UKSC 46  that such a review was necessary in the light of the Supreme Court’s overturning of Unilin, Coflexip and Poulton).  The recast guidance will apply to the conduct of all future UK Patent cases where there are co-pending Opposition Proceedings before the EPO.

 

[2013] EWCA Civ.1496

Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46

Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46

Henry Carr QC, Iain Purvis QC, and Brian Nicholson acted for Zodiac on its appeal to the Supreme Court on the so-called Unilin point (that damages remain payable after a UK infringement trial even if the patent is subsequently amended or revoked in the EPO).  Zodiac succeeded on its appeal, with the Supreme Court overturning Unilin, Coflexip and Poulton, holding that it was open to Zodiac to say on any inquiry as to damages that Virgin had suffered no damage.  As the Supreme Court noted in its Judgment, the decision calls for reconsideration of the existing practices (Glaxo etc.) where there are co-pending proceedings before the UK Patents Court and the EPO.

Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46

Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18

Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18

Two members of chambers have been involved in this long running dispute concerning the licensing by the NLA of internet news aggregation services.  Henry Carr QC represented Meltwater and the PRCA in the Copyright Tribunal in a successful challenge to the NLA’s licensing scheme.  In parallel with this the NLA brought a claim in the High court against them to determine whether end users infringed the NLA’s copyrights and therefore required a licence.  Michael Silverleaf QC represented Meltwater and the PRCA in the High Court and Court of Appeal.  Henry Carr QC took up the cudgels in the Supreme Court.

The Court was asked to determine the scope of the temporary copying exception to copyright infringement introduced by Article 5.1 of Directive 2001/29/EC. The question was whether the copies of a webpage made on a person’s hard-drive and screen during browsing the internet fell within the exception to infringement.

The Court held that such use would not amount to copyright infringement. The court considered that this was an important issue not only to UK internet users and so made a reference to the European Court of Justice to ensure a uniform application of the law throughout the EU.

 [2013] UKSC 18

 

Apple v Samsung [2012] EWCA Civ 1339

Apple v Samsung [2012] EWCA Civ 1339

Dispute concerning the registered design of the tablet computer.  Henry Carr appeared for Samsung in the Patents Court and Court of Appeal and successfully resisted a jurisdictional challenge.  He also represented Samsung at the trial where a declaration of non-infringement was granted.

Apple v Samsung [2012] EWCA Civ 1339

Following this Appeal, there was a further dispute regarding the wording on Apple’s website and so another hearing in the Court of Appeal followed. The decision from this can be found here Apple v Samsung [2012] EWCA Civ 1430.

Football Dataco Ltd v Sportradar [2012] EWHC 1185 (Ch)

Football Dataco Ltd v Sportradar [2012] EWHC 1185 (Ch)

Action concerning sui generis database right relating to sports data. Henry Carr appeared in the Court of Appeal for Sportradar, where FDCs claim of copyright infringement was dismissed.  A jurisdictional question concerning the locality of infringement by making available to the public referred to the CJEU, where he also appeared.  He then successfully defended Sportradar at a trial in relation to joint liability with its customers.

Football Dataco Ltd v Sportradar [2012] EWHC 1185 (Ch)

Notable Cases

SAS Institute Inc v World Programming Ltd (C-406/10) [2010] EWHC 3012 (Ch)

SAS Institute Inc v World Programming Ltd (C-406/10) [2010] EWHC 3012 (Ch)

Software copyright infringement.  After a major trial in the UK, issues fundamental to the software industry were referred to the CJEU and a further hearing in the UK is expected shortly

SAS Institute Inc v World Programming Ltd [2010] EWHC 3012 (Ch)

SAS Institute Inc v World Programming Ltd (C-406/10)

Dyson v Vax [2011] EWCA Civ 1206

Dyson v Vax [2011] EWCA Civ 1206

At both First Instance (Patents Court) and Court of Appeal Henry was instructed by Dyson concerning alleged infringement by the Mach Zen Vacuum cleaner of Dyson’s Community Registered Design.

Dyson v Vax [2011] EWCA Civ 1206

L’Oreal v Bellure [2010] EWCA Civ 535

L’Oreal v Bellure [2010] EWCA Civ 535

Throughout this long-running Trade Mark dispute, Henry was instructed by L’Oreal regarding sections 10(1) and (3) of the Trade Marks Act. High Court, CJEU, Court of Appeal.   This was a ground breaking case.

L’Oreal v Bellure [2010] EWCA Civ 535

L’Oreal & others v EBay International (C-324/09) [2009] EWHC 1094 (Ch)

L’Oreal & others v EBay International (C-324/09) [2009] EWHC 1094 (Ch)

Henry was instructed by L’Oreal in the dispute concerning trade marks, brand names and selling of good on the auction site Ebay. He attended the First instance trial and the Court of Justice of European Union.

L’Oreal & others v EBay International (C-324/09)

L’Oreal & others v EBay International  [2009] EWHC 1094 (Ch)

What the directories say

"He is at the top of his game.”
Chambers and Partners 2015 

"An esteemed practitioner with “incredibly good judgement,”"
Chambers and Partners 2015 

"one of the UK's leading advocates” and “one of the easiest barristers to work with: charming, helpful and responsive.”
Chambers and Partners 100 UK Bar

'A great favourite of many solicitors'
Legal 500 2014