Wednesday 27 July 2011

The infringer hasn't been born -- and the judge wasn't born yesterday

The Patents Court for England and Wales gave judgment today in ConvaTec Ltd and others v Smith & Nephew Healthcare Ltd and others [2011] EWHC 2039 (Pat), an infringement-and-validity trial heard by the Patents County Court's Judge Birss, sitting as a High Court judge.

The most interesting thing about this fairly unexceptionable case (from this blogger's point of view is an observation made by the judge in the context of claim construction. At paragraph 68 he said:
"In my judgment both sides' original arguments risk committing the fallacy warned against in Nobel v Anderson (1894) 11 RPC 519. A patent is to be construed as if the infringer had never been born".
This point must be one that is at the forefront of British judges' minds of late, since the same principle was cited almost exactly a month ago by Mr Justice Floyd in Cephalon v Orchid & Mylan [2011] EWHC 1591 (Pat), (noted here), in paragraph 35 of his judgment.  Counsel, take note!

1 comment:

Norman said...

I don’t much like this turn of phrase, as it implied that the allegedly infringing device must be ignored during claims construction. This is impossible: as Pumfrey J once said "it is essential to see where the shoe pinches so that one can concentrate on the important points” [2007] EWHC 3077 (Pat) [25]. It would be better, if less colourful, to say construction must be dispassionate and not result driven.