I was lucky to chance upon a topical hearing on my first visit to Rolls Building with a friend who is studying his GDL.
The litigants were a company called Shorts International Limited and Google LLC. Shorts had registered a trademark (ShortsTV), and claimed that Google was infringing it by calling a YouTube feature YouTube Shorts. Google responded by arguing the trademark was invalid.
Shorts had already lost: the judgment gave quite a clear explanation of the factual issues with ample use of photo illustrations.
This was Shorts’s application to the trial judge (an IP KC sitting as deputy judge) for permission to appeal to the Court of Appeal.
It is not easy to persuade someone that his own judgment is wrong, but I thought the judge listened to the arguments with patience and good humour. In fact, as he orally indicated, he was prepared to grant leave on some grounds.
However, he was not satisfied with the three grounds which (as read out) were bare statements that he made errors in findings of fact. It is hard to see how this can be resuscitated with any amount of advocacy, but it was instructive to see how Shorts’s KC did his best to salvage this aspect of the case.
Google’s Counsel had a comparatively easy time arguing against leave to appeal: focusing on how the trial judge’s ruling was impeccable and that all the challenges were essentially attacks on findings of fact.
An oral judgment was given granting Shorts’ applications for permission to appeal. The court then heard Google’s application for leave to appeal (which would only be sought if Short got permission): after hearing brief oral submissions, Google’s application was granted too.
The debate then turned to the form of order, including consequential orders.
In particular, confidential documents had been filed in Court at trial. Google now sought the Court to make some statutory orders to safeguard the confidentiality.
One can readily see why Google and its legal team wanted to take as cautious and wide an approach as it possibly could. One could also readily see why the judge was very reluctant to do so, presumably because these kinds of orders are very much the exception rather than the norm.
Towards the end of the morning, the judge was looking at the documents one by one, and asking Google’s counsel to explain the basis for confidentiality one by one. I left before the process concluded.
Overall, I was surprised by how we could follow much of what went on, even though neither of us read the papers (or knew about the case at all).
Following the hearing, I looked up some of the counsel involved and clicked on links on their featured IP cases (e.g. this one about a 4G patent).
Again I was surprised how one could broadly follow the argument, even if one is jumping in at the CA stage without the benefit of reading the expert evidence or the summary of it in the first instance judgment.
On reflection, perhaps this is not so surprising after all. Trademark cases generally do not involve complicated technical or scientific facts.
While patent cases no doubt do, the litigants tend to be very well resourced, and could afford to a very highly trained legal team to distil the technical knowledge into clear and precise language that even a layman can follow (with a degree of effort on their part).
Perhaps for dry days on Hacker News, the patent judgments are a good alternative.