Patent - Infringement - Validity of patent - Novelty

Molnlycke Health Care AB v Brightwake Ltd (trading as Advancis Medical): Court of Appeal, Civil Division (Lord Justices Ward, Etherton and Lewison): 24 April 2012

The claimant company and the defendant company were both manufacturers of wound dressings for use in hospitals. The claimant was the patentee of European patent number EP 0 633 757 (the patent), which concerned such dressings. The patent was entitled 'A method and an arrangement for manufacturing wound dressings, and a wound dressing manufactured in accordance with the method'. The patent referred to some prior art, in particular, reference was made to a European patent application (Brassington), which the patent had stated as disclosing the features of the preamble to claims contained with the patent's application. Brassington disclosed a wound dressing comprising a perforated carrier material and a layer of hydrophobic silicone gel, which laid against the wound surface when the dressing was worn.

The patent was stated as providing a simple and effective method of manufacturing a wound dressing having a layer of hydrophobic silicon gel which was intended to lie against the wound or sore, and a layer of carrier material which, when the dressing was worn, faced outwardly, was not sticky, and would not adhere to clothing and the like. The inventive dressing was said to facilitate healing of the wound in the same beneficial fashion as Brassington. The claimant alleged that two products called 'Episil', which were manufactured by the defendant, had infringed the patent.

The defendant denied that its products had infringed the patent, but also attacked the validity of the patent. The defendant contended that the patent had been anticipated by Brassington, and hence the claimed invention was not new, and that the invention was obvious over Brassington. The case for obviousness advanced by the defendant and supported by its expert witnesses was that it was obvious to coat one side of the dressing with a plastic film and silicon gel and leave the other side uncoated with anything. The judge found that Episil had not infringed the patent. The judge further held, inter alia, that the patent was invalid for obviousness over Brassington.

Whilst he rejected the defendant's arguments on obviousness that had been supported by the defendant's expert witnesses, he held that the skilled reader would not have known of the use of apertured plastic films as suitable for wound dressings, and the use of tacky silicon gel on the wound side of the dressing was disclosed by Brassington. The claimant appealed. Since the launch of the appeal, the parties had settled. However, the claimant pursued its challenge against the judge's finding that the patent was invalid for obviousness. It fell to be determined whether the patent was obvious over Brassington. The appeal would be allowed.

The course of action that the judge had held to be obvious was one that the defendant's own expert had said was 'wasteful and pointless'. That expert evidence had fatally undermined the judge's finding that Brassington gave the skilled reader a solid motivation to coat the non-wound side of a plastic film carrier with non-tacky silicon. The judge's finding was not just a finding made without supporting expert evidence, but it was a finding made contrary to the expert evidence. The judge had made an error of principle in postulating a non-inventive route to the invention that was contrary to the only expert evidence on the subject. In so finding, he had not taken into account a highly relevant factor, namely the mindset of the skilled addressee as represented by the expert witness's evidence, which had showed that the skilled addressee would have had no motivation to embark upon the course that the judge had proposed (see [32], [35], [37], [38] of the judgment).

Molnlycke AB v Procter & Gamble Ltd (No 5) [1994] RPC 49 considered; Biogen Inc v Medeva plc [1997] RPC 1 considered; Panduit Corp v Band-It Co Ltd [2002] All ER (D) 237 (Apr) considered; Pozzoli SPA v BDMO SA [2007] All ER (D) 275 (Jun) considered; Siemens Schweiz AG v Thorn Security Ltd [2008] All ER (D) 211 (Oct) considered. Decision of Judge Birss QC [2011] All ER (D) 03 (Mar) reversed.

Iain Purvis QC and Anna Edwards Stuart (instructed by Charles Russell, Solicitors) for the claimant. The defendant did not appear and was not represented.