Occlutech GmbH v. AGA Medical Corporation & Ors, Court of Appeal (Civil Division), Royal Courts of Justice, London, UK, 22 June 2010
The Court of Appeal has dismissed an appeal against the decision of the Patents Court finding non-infringement of EP(UK) 808138 (the "Patent").
The Appeal concerned whether there was an infringement of the Patent for a medical device used for occlusion of blood vessels and other body lumens. The Patent claims a device comprising a metal fabric formed of braided metal strands characterized by clamps adapted to clamp the strands at the opposed ends of the device. The infringement turned on what is meant by "clamps" and clamping "the strands at the opposed ends of the device". The allegedly infringing devices are made using a mesh sock made out of metal wire in which there are cut strands only at one end. These are secured by welding. It was argued by Occlutech that that their devices were not clamped in the sense described in the Patent, because the ends of the metal strands in their devices are secured together by welding; and, the metal fibres all terminate at one end of the device rather than at both ends.
The Court of Appeal dismissed the appeal, whilst noting that The Hague District Court have ruled in favour of Occlutech and the Düsseldorf Higher Regional Court against. There was no infringement of the Patent. Article 69 of the EPC 2000 requires the extent of protection conferred by a European patent to be determined by the claims.
The interpretation of the claims, in particular, their application to cases where the alleged infringer has arguably achieved the same effect as the patent by an equivalent means were considered in detail by the House of Lords in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd  RPC 9 and the relevant principles are summarised in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd  EWCA Civ 1062. Whilst Kirin-Amgen is important for its recognition that the purpose of the patent, whilst operating as an obvious contextual aid to construction, is not necessarily determinative of the scope of the claims. It is still important to look at the language of the claims in order to decide whether they were intended to encompass the entirety of the ideas expressed in the teaching. Upon a detailed examination of the Patent, the claims do not extend to an external device attached by (e.g.) welding or soldering to ends which are effectively held in place by an earlier welding process. The clamp has to be the primary and effective means of securing the loose ends. Furthermore, the skilled addressee would have read the reference to clamps (plural) as a distinctive and necessary feature of the invention. The inclusion of the words "opposite" and "clamps" (plural) would have confirmed to him that he was still looking at a claim to patent the method of producing what is illustrated in the Patent.
Read the judgment (in English) on Bailii here.
Head note: Paul England