Does the TRIPS Agreement provide patentees with an automatic right of appeal?
Pozzoli argued that Article 32 of the TRIPS Agreement imposes an obligation to grant permission to appeal where a patent has been revoked at first instance, even if there is no real prospect of success. Article 32 of the TRIPS Agreement reads: “An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available”. The Court of Appeal dismissed Pozzoli’s argument that Article 32 requires a full judicial hearing on the merits. It held that a decision by the Court of Appeal as to whether or not to grant permission to appeal from an order for revocation is a “judicial review” within the meaning of Article 32 of the TRIPS Agreement. When should permission be granted? The Court of Appeal went on to observe that, in patent cases which are not very clear and which would not be understood sufficiently readily by the Court of Appeal in an hour or so, the better course was normally for the trial judge to grant permission to appeal. This was because the Court of Appe
