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.

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