Brian Nicholson KC

Call: 2000
Silk: 2019

Brian was appointed as one of Her Majesty’s Counsel learned in the law in 2019 (QC, now KC) after serving 5 years as Standing Counsel for the Comptroller-General of Patents, Designs and Trade Marks (2014-2019). He has represented clients as leading or sole counsel in the United Kingdom’s highest courts, including the Supreme Court, the Court of Appeal and the High Court. He has represented the United Kingdom before the Court of Justice of the European Union and appeared in the Supreme Court of Gibraltar.

With a very strong technical background, Brian particularly specialises in cases involving substantial and complex electronic or computing content, but he continues to practice in all areas of intellectual property, including having recently acted in Trade Mark and Design matters before the Supreme Court and the CJEU, pharmaceutical matters before the High Court, Court of Appeal and the CJEU, and confidential information, passing off and copyright matters before the High Court.

Brian has considerable and varied experience in major multi-jurisdictional litigation and is very well acquainted with working in international teams.

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Recent & Notable Cases

JC Bamford Excavators Limited v Manitou UK Limited & Anor [2023] EWCA Civ 840

Court of Appeal decision on the publication of the Defendant’s confidential information and trade secrets in a judgment. The Court held that: the information in question (recorded in the first instance judgment and...

Vodafone v IPCom [2023] EWCA Civ 113

Vodafone v IPCom [2023] EWCA Civ 113 IPCom was the registered proprietor of European Patent (UK) No 2 579 666 relating to the allocation of access rights within a telecommunications network. At trial, Mr Recorder Cam...

Dr Reddy’s Laboratories & others v Warner-Lambert Company LLC [2023] EWCA Civ 73

In the latest instalment in the fallout from the pregabalin litigation, Warner-Lambert had sought to amend its case on the damages inquiry to introduce an attempt to reduce the damages payable upon their cross-undertaking by arguing that Dr Reddy’s should not be entitled to recover the profits it would have made on the proportion of its lost sales of skinny-label pregabalin that would have been used by patients for the treatment of inflammatory pain. Warner-Lambert put its case on two bases:

(1) An ex-turpi causa argument that such sales would have involved an infringement by pharmacists, pursuant to sections 60(1)(b) and/or 60(2) of the 1977 Act, of those claims of the patent which related to inflammatory pain and which were not declared invalid during the liability phase.

(2) A contention that such sales, even if they would not have involved any infringement of the patent, would nevertheless have been enabled by the second medical use disclosed by Warner-Lambert in the patent such that it would be unjust and inequitable for Warner-Lambert to have to pay compensation in respect of those sales. This argument was prefaced on the proposition that the grant of a patent confers upon the patentee, in addition to the right to bring claims for infringement, a non-statutory monopoly over the inventive concept disclosed in the patent.

At first instance, the Judge had rejected the first argument inter alia on the grounds of abuse of process, and the second argument on the basis that there was no monopoly beyond the confines of the statute.

The Court of Appeal unanimously upheld the Judge’s conclusion on the first argument. In addition, Arnold and Nugee LJJ found that the claims of infringement by pharmacists had no realistic prospect of succeeding. Males LJ expressed “grave reservations” about the viability of the infringement case, but elected not to decide the appeal on that ground.

The second argument was unanimously rejected by the Court of Appeal, which confirmed that a patent confers no monopoly in respect of acts which do not infringe it.

Brian Nicholson KC and Christopher Hall represented Dr Reddy’s.

[2023] EWCA Civ 73

J C Bamford v Manitou BF [2022] EWHC 1724 (Pat)

Trial of an action for infringement of three patents relating to the control systems for telehandlers (machines widely used in the building industry and agriculture for moving and lifting loads) which were designed to co...

Hand Held Products, Inc. v Zebra Technologies Europe Limited & ors [2022] EWHC 640 (Ch)

This patent infringement / invalidity action concerns bar code scanning and imaging technology. The claimants are part of the Honeywell group of companies; the defendants part of the Zebra group. The claimants sued Zebra...

Dr Reddy’s & Ranbaxy & ors v Warner-Lambert [2021] EWHC 2182 (Ch)

This is the inquiry into damages arising out of the pregabalin litigation. In what is the largest such inquiry in the history of the Patents Court, several generic pharmaceutical manufacturers, and the NHS, each seek com...

Facebook Ireland Limited v Voxer IP LLC [2021] EWHC 1377 (Pat)

In Facebook’s first visit to the UK Patents Court, it sought revocation of a telecommunications messaging patent owned by Voxer. The counterclaim raised infringement by the doctrine of equivalents, in response to which...

Claydon Yield-O-Meter Limited v Mzuri Limited & anr [2021] EWHC 1007 (IPEC)

This was a claim for infringement of two patents relating to agricultural machinery. The patents were directed to apparatus for performing one-pass “strip tillage”, in which one row of leading tines produces strips of d...

IPCom v Vodafone [2021] EWCA Civ 205

This was an appeal from the order of Mr Recorder Campbell QC following trial, [2020] EWHC 132 (Pat), concerning a mobile telecommunication patent, European Patent (UK) No. 2 579 666 (the “Patent”), owned by IPCom. The J...

IPCom v Vodafone [2020] EWHC 132 (Pat)

IPCom alleged infringement of EP(UK) 2, 579, 666 B1, which is entitled “Allocation of access rights for a telecommunications channel to subscriber stations of the telecommunications network”. The Patent is part of the s...

TQ Delta, LLC v ZYXEL Communications Ltd & Anor [2019] EWHC 562

The Claimant, TQ Delta, was the proprietor of two patents relating to Digital Subscriber Line (“DSL”) broadband internet technology. EP (UK) 1 453 268 concerned a method for controlling the proportion of transmission b...

Abraxis Bioscience LLC v Comptroller General of Patents (C-443/17) and [2017] EWHC 14(Pat)

Brian Nicholson represented the Comptroller General of Patents in an appeal to the Patents Court (Arnold J) concerning the Comptroller’s refusal to grant a supplementary protection certificate (SPC), on the basis that th...

Garmin (Europe) Ltd v Koninklijke Philips N.V. [2019] EWHC 107 (Ch)

Claim for infringement of an early patent covering GPS fitness trackers. Philips argued that the patent had been ‘art-changing’ in 1998 (cf Schlumberger), raising hotly contested issues as to the identity of the skilled...

SSH Communications Security Corporation v Sony Mobile Communications AB & Ors [2018] EWCA Civ 2237

Iain Purvis QC and Brian Nicholson appeared for the patentee in this unusual ex parte appeal seeking the setting aside of an order for revocation of a patent under the principle in Haliburton v. Smith [2006] EWCA Civ 185...

Clearswift Ltd v Glasswall (IP) Ltd [2018] EWHC 2442 (Pat)

Brian Nicholson and Christopher Hall represented the Claimant in this patent revocation action, in the field of anti-malware software technology. [2018] EWHC 2442 (Pat)...

Apple Retail UK Ltd v Qualcomm (UK) Ltd [2018] EWHC 1188 (Pat)

Brian Nicholson and Christopher Hall act for the claimant in the global litigation between Apple and Qualcomm. The dispute raises several issues including FRAND licensing, patent exhaustion, and competition law. In thi...

Koninklijke Philips N.V. v Asustek Computer Incorporation, HTC Corporation & Ors [2016] EWHC 867 (Pat)

This was an application for a preliminary issue in a three patent infringement action concerning high speed packet access (HSPA) technology in mobile telecommunication networks. The preliminary issue sought by HTC was a...

American Science & Engineering Inc v Rapiscan Systems Ltd [2016] EWHC 756 (Pat)

Iain Purvis QC and Brian Nicholson, instructed by Tim Bamford of Collyer Bristow, appeared for the patentee, AS&E, in its claim that Rapiscan had infringed one of AS&E's covert X-ray inspection patents. Unusuall...

IPCom v HTC & ors [2015] EWHC 1034 (Pat)

Iain Purvis QC and Brian Nicholson continue to represent IPCom in this long-running telecoms patent dispute. In proceedings against HTC, the most recent Judgment considers the validity, infringement and essentiality of...

Philips v Nintendo [2014] EWHC 1959 (Pat)

Brian acts for Nintendo in this multi-patent dispute about virtual reality, user interfaces and Nintendo’s Wii and Wii U game systems. Of particular interest is the Court’s consideration of the proper approach to skilled...

Virgin Atlantic Airways Ltd v. Zodiac Seats UK Ltd and Delta Air Lines, Inc; The Comptroller General of Patents and the Secretary for State for Business, Innovation and Skills (intervening) [2013] EWCA Civ 1713

Iain Purvis QC and Brian Nicholson were instructed on behalf of Zodiac, and Benet Brandreth was instructed on behalf of Delta, in the Court of Appeal in this last part of the ongoing dispute regarding airline seats. Vir...

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...

British Sky Broadcasting Group Plc & Ors v Microsoft Corporation Microsoft & Anor [2013] EWHC 1826

Iain Purvis QC and Brian Nicholson acted for Sky, in its successful claim against Microsoft over the use of SkyDrive for Microsoft's cloud storage solution. The claim was founded on infringement of UK and Community trad...

3i Infotech Ltd v The Royal Bank of Scotland PLC

Brian acted for the Royal Bank of Scotland in a case brought by its former software supplier 3i. 3i alleged that in the process of adopting a new software system, RBS misused 3i's confidential information, infringed its...

PMS International Group Plc v Magmatic Limited [2016] UKSC 12

This is the first Community Registered Design case to reach the Supreme Court, and in it the Court has made a landmark decision as to the proper interpretation of Community Registered Designs. In this case, Magmatic, the maker of the Trunki ride-on suitcase for children brought a claim against PMS for infringement of its Community Registered Design against PMS, the seller of the Kiddee Case, which is also a ride-on suitcase for children. In July 2013, Arnold J interpreted the Community Registered Design was for shape of a suitcase alone and held that it had been infringed by the Kiddee Case.

The Court of Appeal allowed PMS’s appeal, holding that the judge had made a number of errors in interpreting the Community Registered Design. Having carried out its own comparison of the respective overall impressions created on the informed user, the Court found that the Kiddee Case did not infringe the Community Registered Design.

Magmatic appealed to the Supreme Court, arguing that the Court of Appeal’s interference with the decision of Arnold J was misplaced and requesting the restoration of the original finding of infringement. In the alternative, Magmatic contended that the case involved points of EU law which should be referred to the CJEU. The request for a reference was supported by the Comptroller General of Patents, Designs and Trademarks who was given permission to intervene.

The Supreme Court dismissed the appeal and declined to make a reference to the CJEU. The Court of Appeal’s reconsideration was justified. In the leading judgment given by Lord Neuberger, the Court held that the overall impression created by the Community Registered Design is that of a horned animal and this was reinforced by the absence of decoration on the surfaces of the suitcase. Moreover, Arnold J had erred in failing to take into account the contrast in tone between its different parts. The Court of Appeal’s finding of infringement therefore stood. In addition whilst expressly stating that its decision on this aspect was obiter the Court expressed the very strong view that absence of decoration may as a matter of principle be a feature of a registered design and that feature may be depicted on a CAD image. Having decided the matter in this way, the Supreme Court considered that the appeal did not raise any issue which should be referred to the CJEU.

Mark Vanhegan QC and Chris Aikens appeared for PMS. Brian Nicholson appeared for the Comptroller General of Patents, Designs and Trademarks.

[2016] UKSC 12