Wednesday, 30 June 2010

Contingent invalidity appeal spared by bifurcation

The Court of Appeal for England and Wales today published its decision in Medtronic CoreValve LLC (formerly CoreValve Inc) v Edwards Lifesciences AG and Edwards Lifesciences PVT Inc [2010] EWCA Civ 704 -- another in the popular series on heart-related patents. The decision focused on a fairly simple issue of claim construction relating to the words "cylindrical surface" and "cylindrical support means" in Claim 1 of the patent. More interesting -- for litigants at any rate -- is the manner in which the court and the parties combined to keep the appeal as tightly focused as possible, thereby saving time, effort and money. As Lord Justice Jacob explained:
"1. The patentee (Edwards) appeals the decision, [2009] EWHC 6 (Pat) ... that the claimant’s ... heart valve device did not infringe Edwards’ EP (UK) No. 0592410 but the Patent is valid. CoreValve cross-appealed his decision on validity, but only contingently so: if we decided that its product does not infringe, then it was not concerned with validity.

2. This was not one of those cases where the issue of infringement is interlinked and overlapped with that of validity – the validity and infringement points were independent of each other. So, with the parties’ agreement, we decided to “bifurcate” the appeal by hearing all the argument on the issue of infringement first. Only if we concluded that the product infringed (or were not yet sure one way or the other) would it be necessary to hear the appeal about validity. In the event, following argument, we were able to form a clear conclusion to the effect that the CoreValve product did not infringe. We so informed the parties at the time. They were able to agree the consequential order".

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