EPLAW Patent Blog

UK - Apimed Medical Honey v. Brightwake Limited

Apimed Medical Honey Limited v. Brightwake Limited, Court of Appeal, London, UK, 20 January 2012, Case No. [2012] EWCA Civ 5

The patent claimed a composition (commercially available as Algivon) for a wound dressing combining honey with a "gelling agent". The gelling agent increases viscosity to the extent that it results in a flexible sheet or pliable putty which can be moulded to fit the wound, providing a way to retain the honey at the wound site. All but one of the examples in the patent relied on sodium alginate as "a gelling and viscosity increasing" agent. Apimed brought an infringement claim against the manufacturer, Brightwake, of an allegedly infringing product. Brightwake’s product was a sheet formed from calcium alginate fibres and then coated with honey. Brightwake counterclaimed for revocation of the patent on the grounds of lack of novelty and obviousness. 

Held: on appeal, overturning the Patents County Court's finding of obviousness, Kitchin LJ focussed on the fact that the prior art paper taught solid honeys may be liquefied by warming and semi-solid honeys may often be liquefied by stirring. As such, the paper contemplated that the honey should be softened. This was contrary to the teaching of the patent. It also described the spreading of honey on a dressing pad or, alternatively, that it should be squeezed directly into a deep wound. There was no description of what may be said to be the heart of the invention of the Patent, namely the use of a gelling agent to increase the viscosity of the honey to such a degree that it can be formed into a flexible sheet or a pliable putty without the need for any separate dressing at all. There had been an error of principal by the first instance judge, because he had failed to identify the above differences between the prior art and the invention and whether those differences, without any knowledge of the invention, would have been obvious to the person skilled in the art.

UK - Schlumberger v. Electromagnetic Services

Schlumberger v. Electromagnetic Services, Court of Appeal, London, UK, 28 July 2010, [2010] EWCA Civ 819

The Court of Appeal has allowed Electromagnetic Services’ (EMGS) appeal of the decision of the Patents Court to revoke two of EMGS’ patents relating to the use of CSEM (Controlled Source Electromagnetic) surveying to detect oil and gas deposits under the sea.

It was common ground between the parties that the two patents in issue, EP (UK) 1 256 019 and EP (UK) 1 309 887, stood or fell together and so the appeal was concerned with EP (UK) 1 256 019 only. At the first instance trial, Mr Justice Mann had held the patent to be obvious on the basis of three pieces of prior art (Chave, MacGregor and Srnka) but rejected Schlumberger’s lack of novelty attacks based on Srnka and Yuan.

UK - Cook Biotech v. Edwards Lifesciences / Appeal

Cook Biotech Incorporated v. Edwards Lifesciences AG, High Court of Justice, Court of Appeal, London, UK, 28 June 2010, [2010] EWCA Civ 718

The Court of Appeal has dismissed an appeal against the decision of Kitchin J at first instance, finding the European Patent (UK) 1 255 510 (“the Patent”) invalid.

 

The Court of Appeal held that the first instance judge had been correct to hold the Patent invalid for obviousness:

 

i) the argument that the Patent was directed to an interventional cardiologist, and so should be read with the limited knowledge, functions and expectations of such a person, was fundamentally flawed. The Patent and the Andersen prior art patent were notionally addressed at the relevant time not just to an interventional cardiologist but to a team which included or would have consulted a cardiac surgeon and someone familiar with the design of implantable surgical heart valves.  They would have pooled their joint knowledge and experience when interpreting the Patent and Andersen;

ii) it is artificial, and counter-intuitive, to seek to make a clear division between the stent and the valve within it on the basis of functionality;

iii) Andersen reinforces the concept of a single stent, without meaningful differentiation according to the different functions it was performing;

iv) the appellant was wrong on the evidence to argue that part of the device had a function for which the interventional cardiologist was not responsible;

v) the minimum 1mm requirement in claims 15 and 22 was arbitrary, and merely there as a reflection of the obvious general need to secure and strengthen the edges of the valve and to prevent tearing.

 

UK - KCI v. S&N

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). 

UK - Nampak Cartons Limited v. Rapid Action Packaging Limited

Nampak Cartons Limited v. Rapid Action Packaging Limited, Patents Court, Chancery Division, High Court of Justice, London, UK, 18 June 2010, [2010] EWHC 1458 (Pat)

The Patents Court has dismissed an appeal against the Patent Office Hearing Officer’s decision to uphold Rapid Action’s UK Patent No. 2 397 593.

Rapid Action’s patent concerns packaging for sandwiches.  Nampak’s application for revocation of the patent was based on lack of inventive step.  When the Hearing Officer rejected its validity attack Nampak appealed the decision to the Patents Court on the grounds that the Hearing Officer: (i) failed to properly consider the expert evidence; (ii) failed to properly construe the teaching of the prior art and ignored the attack based on common general knowledge and (iii) failed to follow the structural approach to assessing obviousness as laid down by the Court of Appeal in Pozzoli.

Dismissing the appeal Mr Justice Floyd held that the Hearing Officer had simply recorded the fact that the parties’ experts took opposing stances on obviousness, and had not substituted his own opinion for those of the experts.  Mr Justice Floyd also upheld the Hearing Officer’s dismissal of the substantive obviousness attacks: the Hearing Officer was entitled to reject these attacks as based on hindsight.  Lastly Mr Justice Floyd rejected the allegation that the Hearing Officer had made an error of principle and failed to apply the structured approach to assessing the question of obviousness laid down in Pozzoli.  While this approach is of assistance in the analysis of evidence, not every slip in its application amounts to an error of principle.  

Read the judgment (in English) here.

Head note: Scott Parker

DE - Fettsäurezusammensetzung (fatty acid composition)

DE - Fettsäurezusammensetzung (fatty acid composition), invalidity proceedings, German Federal Supreme Court, 15 April 2010, Docket No. Xa. ZR 28/08

As to obviousness, the Federal Supreme Court ruled in the field of drugs:

For the person skilled in the art who deals with the technical problem to provide a composition which has advantageous effects on risk factors for certain diseases, it is generally obvious to first examine the effects of known compositions, to determine their active agents and to concentrate them, if there are clues for an improvement of the effect by a higher agent dose.

 

Read the decision (in German) here.

Head note: Tilman Müller-Stoy

DE - Telekommunikationseinrichtung (telecommunication device)

DE - Telekommunikationseinrichtung (telecommunication device), invalidity proceedings, German Federal Supreme Court, 15 April 2010, Docket No. Xa. ZR 69/06

As to obviousness and the references the person skilled in the art would refer to, respectively combine, the Federal Supreme Court ruled:

If there traditionally was a conceptual gap between two sectors of a technical field (here: data transmission in public telephone networks versus data transmission by means of internet/LAN technology), then nonetheless the person skilled in the art may have reason to refer to suggestions of both sectors in order to solve a technical problem if already on the priority date applications and methods evolved which pass the gap between both the sectors (here: internet telephoning) and if the technical problem has to be faced in both sectors in a similar manner.

Read the decision (in German) here.

Read a summary in English, provided by Bardehle & Pagenberg, here.

Head note: Tilman Müller-Stoy

UK - HTC Corporation v. Yozmot 33 Limited

HTC Corporation v. Yozmot 33 Limited, Patents Court, Chancery Division, High Court of Justice, London, UK, 20 April 2010, [2010] EWHC 786 (Pat)

The Patents Court has held Yozmot’s patent EP (UK) 0 909 499 to be partially valid.

Yozmot’s patent concerned a boosted loudspeaker for a mobile telephone. Yozmot alleged infringement of claims 1,2, 5 and 6 of the patent in respect of a number of HTC’s mobile phones and asserted claims 5, 6 and 7 as being independently valid. HTC alleged that the patent was invalid for lack of novelty, obviousness, insufficiency, added matter and unpatentable subject matter.

Mr Justice Arnold held claims 1, 5 and 6 to be invalid for lack of novelty and obviousness. The allegations of insufficiency, added matter and unpatentable subject matter failed and so claim 7 was held to be valid. Mr Justice Arnold held that if claims 1, 5 and 6 were valid, they would have been infringed by HTC.

Read the judgment (in English) here.

SE - Hilding v. Wonderland

Hilding Aktiebolag v. Wonderland AS, District Court of Stockholm, 12 March 2010, Docket Nos. T 29062-06 / T 22004-06 (joint cases)

In joint infringement and invalidity proceedings, the District Court of Stockholm declared Wonderland’s European patent invalid for Sweden in a judgment in the invalidity case (T 29062-06). The patent was declared invalid due to lack of inventive step. In the Court’s assessment, among other issues, the common general knowledge in the art and obviousness were considered.

Furthermore, the Court declared in the infringement case (T 22004-06), in an intermediate judgment, that the disputed patent had been infringed by Hilding. The assessment of whether the disputed patent had been infringed was done in an objective manner only, based on the hypothetical assumption that the patent was valid. The remainder of the proceedings, including the trial of claims for injunction and damages, were stayed awaiting a final judgment with regard to the validity of the patent. As from 1 November 2008, leave for appeal is required to the appellate courts (for patents cases; the Svea Court of Appeal).

Read the judgment (in Swedish) here.

UK - Intervet UK Limited v Merial & Others

Intervet UK Limited v Merial & Others, High Court of Justice, Chancery Division, Patents Court, London, UK, 23 February 2010, Case No. [2010] EWHC 294 (Pat), with thanks to Richard Willoughby, Howrey

Today, the approved judgment of Mr Justice Arnold has been published regarding the UK aspect of a number of associated actions concerning the Defendant's European patent entitled "Method for the in vitro diagnosis of type II porcine circovirus infection and diagnostic reagents" (the "Patent").  In summary, the Defendants alleged that Intervet had infringed claim 18 of the Patent by making a vaccine know as Porcilis PCV.  Intervet denied infringement, and sought revocation of the Patent.  Mr Justice Arnold has held that the Patent is invalid and must be revoked for reasons of obviousness, and made reference to the Dutch court's conclusions on this point in his judgment.  Mr Justice Arnold further held that, in any event, Intervet had not infringed claim 18.

Read the judgment (in English) here.

Read the post re the parallel Dutch case here.