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 Judge had held the Patent valid (as amended), essential to operating access control in accordance with the LTE (4G) standard and infringed by Vodafone’s network. However, the Judge decided that Vodafone had a partial defence of Crown Use.
Vodafone appealed against the Judge’s findings of non-obviousness of the Patent, allowability of the amendment (due to extension of protection), infringement by equivalents, the de minimis defence and the form of declaration made by the Judge. IPCom appealed in respect of the partial Crown Use defence and the Judge’s finding that the product claim was infringed when the access control parameters were sent by Vodafone’s base stations but not at other times. The Secretary of State for Defence intervened in support of the appeal in respect of the Crown use defence.
The appeal was heard by Lewison, Asplin and Arnold LLJ. Arnold LJ gave the lead judgment, dismissing Vodafone’s appeal and allowing IPCom’s appeal on Crown Use.
Brian Nicholson QC and Adam Gamsa were instructed by Bristows for IPCom. Michael Silverleaf QC was instructed with Azeem Suterwalla of Monckton Chambers by the Government Legal Department for the Secretary of State for Defence.