The Court of Appeal, consisting with the parties' agreement of an even number of judges (Lords Justices Waller and Jacob) since the third member of the court was unwell, allowed the claimant's appeal against a finding that the contested patent was not infringed [for a note on the first instance decision click here]. Nonetheless the decision contained something of broad value to patent litigators: an affirmation that the new-style Protocol to Article 69 of the European Patent Convention was not intended to have the effect of expanding the scope of infringement so as to include matters that might have remained non-infringing under the old version. As Jacob LJ said at para. 3:
"Ancon say that the Judge construed claim 1 (the only claim that need be considered) too narrowly. ACS say he was right. So the whole question essentially turns on the proper construction of claim 1. In their skeleton argument for Ancon Mr Daniel Alexander QC and Mr James St. Ville tentatively advanced a further argument – that even if the claim as properly construed did not cover the ACS assembly, there was infringement nonetheless by virtue of the amendments made to Art 69 of the EPC and the Protocol thereto in 2000. In the event it is not necessary to consider this argument. All I would say is that has considerable difficulties both because our House of Lords has indicated it makes no difference ... and because a trawl through the travaux préparatoires to the EPC 2000 does not show a clear intention to change the law".