KCI Licensing Inc, KCI Medical Resources and KCI Medical Limited v. Smith & Nephew Plc, Smith & Nephew Inc, Smith & Nephew Medical Limited and Smith & Nephew Healthcare Limited, Patents Court, Chancery Division, High Court of Justice, London, UK, 23 June 2010, [2010] EWHC 1487 (Pat)
The Patents Court has upheld European Patents (UK) Nos. 0 777 504 B1 (“‘504”) and 0 853 950 B1 (“‘950”) and found both to have been infringed by S&N.
KCI’s Patents concern apparatus for use in negative pressure wound therapy (‘950 is a divisional of ‘540). This therapy, involving the use of vacuums, has been found to reduce bacterial infection and to promote tissue growth, and thus to help heal wounds which were difficult to treat by previous methods.
S&N sought to invalidate the Patents on the basis that they were not entitled to priority (it was accepted that if the claim to priority failed the Patents were invalid as products made according to the Patents had been sold during the priority year). The argument was twofold: (i) the applicant (the parent company of each of the claimants) lacked the right to claim priority and/or (ii) the applicant’s claim to priority had been adversely affected by the status as co-applicant of another of its subsidiaries (which did not have the right to claim priority).
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