More On Conor

blog on Conor Medsystems on vi March (also commented on here) together with the comments from Luke Dylan Ueda-Sarson most Pumfrey J's judgment (which tin live read here in total on BAILII).

Luke wonders whether Pumfrey used the incorrect examine for obviousness. I mean value that he may stimulate got misunderstood what Pumfrey was saying. As I empathize it, Pumfrey said that when considering the inquiry of obviousness, i must outset ascertain the compass of the conception claimed. Pumfrey, before inwards the judgment, looks at the specification of the patent inwards exactly about detail. In para 12, he says that the patent is "lengthy", but "very niggling of it is most restenosis together with stents". At the terminate of para 24, he concludes that at that topographic point is no illustration given inwards the patent of the role of taxol-coated stents for the inhibition of restenosis at angioplasty sites. This leads him to conclude, at para 62, that the disclosure of the specification is exactly that taxol may live incorporated into a stent, together with non that such a stent would genuinely work. The patent hence does non claim, every bit such, a stent containing taxol for role inwards controlling restenosis. At best, it claims the sentiment of trying taxol inwards a stent. Therefore, if it would stimulate got been obvious to the skilled homo to movement taxol, the patent is invalid for lack of inventive step. The probable prospect of success is irrelevant, every bit the patent does non claim that such a device would inwards fact live successful.

Accordingly, I produce non mean value that Pumfrey did role the incorrect test. I also produce non mean value that the judgment adds anything to the ongoing "obvious to try" saga inwards Schering-Plough together with Saint Gobain etc, every bit the prospects of success are not, on the special facts of the case, relevant.

Of course, it may live me who has misunderstood the judgment, but that is my 2 pence worth!

is feeling decidedly puzzled at this point: each declaration he has read seems perfectly plausible to him together with they can't both live right. If whatever of the judges who read this weblog would similar to brand a ruling, the Kat would live most grateful. Merpel says, on balance, Brian Whitehead must live right. If nosotros assume that Pumfrey J (i) knew the existing police together with (ii) would non stimulate got sought to alter it or apply it inwards an innovative vogue without outset flagging his intention to produce so, nosotros should examine the judgment on the footing that - if at that topographic point is whatever discernible shift inwards the law's application - to the lowest degree departs from normal accepted practice.

Abstract of recent article on patent claim interpretation past times Brian Whitehead together with Richard Kempner here.