Anan Kasei and Rhodia v Neo [2023] EWCA Civ 11
Neo had infringed the Claimants’ patent by dealing with high surface area (‘HSA’) ceric oxide products in the UK. Those products are used (in combination with a number of other ingredients) in the manufacture of exhaust catalyst systems to reduce emissions. Neo’s commercial sales in the UK to its customer, Johnson Matthey, had been compromised. However, at the inquiry, the Claimants sought damages of over €24m for loss of overseas sales consequent to Neo’s supply of development samples and sale of initial quantities of HSA ceric oxide in the UK. Bacon J had refused the claim on the basis that the patent infringement was not the proximate cause of any overseas lost sales. The Claimants appealed and Neo’s respondent’s notice sought to uphold the judgment on the basis that the losses were outside the territorial limits of the scope of protection of a UK patent, were disproportionate and a barrier to legitimate trade (according to TRIPS and the Enforcement Directive). Neo also challenged the Judge’s quantification of a reasonable royalty and sought permission to raise a new argument about Rhodia’s status as an exclusive licensee and associated disclosure.
Lord Justices Peter Jackson, Coulson and Arnold heard the appeal between 13 and 15 December 2022. The Judges dismissed the appeal but nevertheless went on to address the arguments raised in Neo’s respondent’s notice and application. They held that the duty nexus legal filter in tort generally does not apply to losses factually and legally caused by patent infringement; and that the claim would not have constituted a barrier to legitimate trade or have been disproportionate. The Court did not order the disclosure sought or permit Neo to introduce the new argument on appeal.
Hugo Cuddigan KC and Adam Gamsa appeared for Neo, instructed by Bird and Bird LLP.