Stuck Inward The Mdu; Parties Inward Courtroom - Amongst Arterial Balloons

Where information mismanagement is non material

has merely spotted a fresh conclusion of Mr Justice Rimer from final Friday, three March, inward Johnson five Medical Defence Union Ltd [2006] EWHC 321 (Ch), brought to you lot courtesy of early final month).

Angiotech owned a patent for a stent that was used inward coronary angioplasty. After a stent was inserted into a diseased artery inward the assort of angioplasty, a balloon could too thus live inflated to opened upward up the artery, keeping the artery open. The patent claimed a stent coated amongst a polymer loaded amongst the drug taxol, which inhibited the evolution of tissue that mightiness outcome inward the gradual closure of the artery (restenosis). Angiotech licensed the patent to Boston Scientific, who made stents. Conor, a swell competitor of Boston Scientific, too thus sought to revoke the patent, claiming that it was obvious inward the low-cal of the prior art.

Pumfrey J allowed the application too revoked the patent. The mere fact that no-one had used stents similar this earlier mightiness brand them new, but it didn't brand them non-obvious: you lot merely can't nation that everything obvious at the priority engagement should bring been done or contemplated either too thus or at whatever fourth dimension subsequently. Given the dry ground of the art, it was obvious to anyone who needed a stent of this nature that he would bring to role taxol. Accordingly the patent was invalid for obviousness.

's friend Luke Dylan Ueda-Sarson picks upward a flake inward the judgment where Pumfrey J says:

"61. ...Put unopen to other way, is the patent vulnerable solely if it tin live shown that the skilled individual would bring an expectation of success sufficient to receive him to contain taxol inward a drug-eluting stent, or is it sufficient that without whatever expectation of success he would exam or enshroud taxol?

62. In my judgment, this inquiry is to live answered past times assessing the contribution to the fine art disclosed past times the specification. For the reasons that I bring given above, I am satisfied that the disclosure of the specification is that taxol may live incorporated inward a stent. It does non advise that such a stent would live prophylactic or that such a stent would function to preclude restenosis...

89. Balancing the foregoing factors is non straightforward. In my judgment, the fundamental to the solution of the work lies inward the right identification of the appropriate approach to the exam for obviousness. For the reasons that I bring endeavoured to explain, I consider that the appropriate exam is whether it was obvious to exam taxol at all. The specification giving no indication of whatever likelihood of success, too giving no indication every bit to toxicity, side-effects or indeed efficacy, it is incorrect inward regulation to permit such considerations to weigh against the obviousness of testing taxol. So I conclude that the claims were obvious".

Luke comments on this:

"In essence, this seems to live proverb to me that the exam for obviousness inward this example depended on what the patentee had written inward the torso of the specification (its "contribution to the art"). Isn't the normal exam for obviousness comparison what is claimed amongst what the prior fine art teaches too what the individual skilled inward the fine art would know WITHOUT reference to the specification inward question? Is at that spot something I am missing here?".

Would whatever IPKat readers tending to comment? Merpel adds, at that spot seems to live a novel agency of dealing amongst inventive footstep inward the UK every fourth dimension whatever courtroom gives a ruling. Can nosotros delight get-go afresh amongst a build clean railroad train of guidelines too a hope that nosotros never take away larn dorsum to too through all the quondam cases again?