UKSC Denies Appeal in Anan Kasei v. Neo

As reported on Law360 earlier today, on June 9 the U.K. Supreme Court refused permission to appeal in Anan Kasei Co Ltd and another (Appellants) v Neo Chemicals and Oxides (Europe) Ltd and others (Respondents), UKSC 2023/0021, in a one-sentence statement that “the application does not raise an arguable point of law” (see here).  As readers may recall, this is the case in which:

(1) the Patents Court concluded that a patent owner can recover lost profits on sales it would have made in another country, but for a defendant’s predicate act of domestic infringement, subject to application of the doctrine of proximate cause (¶¶ 87-109); and declined to depart from the rule established in 1888 by the House of Lords in United Horse Shoe & Nail Co. v. John Stewart & Co., which precludes a defendant from avoiding a judgment for lost profits by showing that it could have resorted to a noninfringing alternative (¶¶ 118-39) (see here); and 

(2) the Court of Appeal affirmed the ruling on extraterritorial damages (and did not address the United Horse Shoe issue, other than to note that “Neo could not have supplied a non-infringing alternative which JM would have accepted," ¶ 108) (see here).

Both decisions came to the conclusion, however, that on the evidence presented the patent owner wasn't able to prove a sufficient causal link to recover the extraterritorial damages sought.

For reasons stated in my previous two posts on this case (see here and here), I agree with the courts’ conclusion on the law on extraterritorial damages, for reasons stated in my article Extraterritorial Damages in Patent Law, 39 Cardozo Arts & Enter. L.J. 1 (2021).  I remain hopeful that someday the U.K. courts overturn United Horse Shoe, for reasons I have stated in numerous works, including this coauthored chapter from the edited volume Patent Remedies and Complex Products: Toward a Global Consensus (C. Bradford Biddle et al., Cambridge Univ. Press 2019).