So back to the case in hand. ConvaTec own a number of patents relating to wound dressings. The patent in suit (EP(UK) 0 927 013) concerned a non-adherent dressing comprising certain fibrous material that operated to absorb wound exudate (i.e. seepage) whilst maintaining a moist environment around the wound. Keeping a wound moist is generally agreed to aid healing, but too much moisture is a bad thing as it can lead to maceration (i.e. over-hydration) of the surrounding skin. Accordingly, at the priority date of the patent there were a number of wound dressings on the market that promoted the maintenance of a moist wound environment by gelling – absorbing the exudate and forming a gel within the dressing itself.

Smith & Nephew wished to sell a wound dressing called Durafiber. ConvaTec alleged that this would infringe their patent, and so brought an action against them. Smith & Nephew, for its part, denied infringement and counterclaimed for revocation on the ground of invalidity.

Construction
Having orientated himself by considering the technical background to the invention, the identity of the skilled addressee and their common general knowledge, the Judge then addressed the issue of construction. Distinct issues of construction arose in respect of claims 1 and 3 of the patent:

Claim 1:
A wound dressing comprising a blend of discrete modified cellulose gel forming fibres with at least one other type of discrete gel forming fibres.
Claim 3:
A wound dressing as claimed in any preceding claim wherein the dressing comprises a wound contacting surface consisting of a blend of discrete modified cellulose fibres with at least one other type of discrete gel forming fibres.

Setting out the law, the Judge adopted the tried and trusted formulation found in Kirin Amgen Inc v Hoechst Marion Roussel [2004] UKHL 46, [2005] RPC 9, and also recited the 11-point plan endorsed by the Court of Appeal in Virgin v Premium Aircraft Interiors [2009] EWCA Civ 1062, [2010] RPC 8. When addressing claim 1, he explained that there 2 issues of construction: the first was the meaning of “blend of discrete fibres” and whether this rendered it a product by process claim; and the second was the meaning of the word “type”.

Rejecting the contention that claim 1 would be understood by a skilled reader to refer back to the process by which the product was made, the Judge explained that it was a simple product claim:

[55] “…The claim is a claim to a thing – a wound dressing. The thing comprises a blend of (at least) two types of discrete fibres. In other words a mixture of discrete fibres.”

[57] “No doubt the reader would expect it to be likely that one would make such a wound dressing by mixing (blending) the two fibre populations but that processing is not what the claim is talking about. The claim is talking about a product…. The reader would understand that the invention is about using the mixture of fibres which gives beneficial properties as a wound dressing. It is not an invention focussed on manufacturing methods. How you choose to make the mixture is irrelevant.”

Moving on to the construction of “type” within claim 1, the Judge noted (at [60]) that ConvaTec had argued that “type” referred to fibres with different absorbency properties. Smith & Nephew, by contrast, contended that “type” referred to a particular polymer – i.e. to the chemistry of the fibre. In a rather radical move, the Judge considered that “both the claimants’ and the defendants’ submissions are wrong.” He explained that

[63] “The flaw in each side’s submission is to approach the matter as one of construction of the word “type”. Type is a perfectly ordinary English word which ordinarily would not be expected to bear the kind of refined analysis each side have subjected it to. The key it seems to me is to appreciate that the correct question is to construe claim 1. Claims should, if they can, be construed as a whole.”

Accordingly, by focussing on the meaning of one word within the claim, the parties had missed the way in which claim 1 was written. As this Kat has long maintained, the process of atomising phrases within the claims is capable of distorting the message conveyed by the whole. The natural tendency when faced with a deconstructed sentence is to treat the individual particles as elements of precision. One assumes that the message conveyed by the whole is simply the sum of its parts, whereas often the true story is much more complicated. Or, as in this case, much simpler: accordingly as the Judge explained –

[65] “…[C]laim 1 is actually rather simple. If all the gelling fibres in the wound dressing are modified cellulose then the claim is not satisfied. The claim requires a blend of (gel forming) modified cellulose fibres and some other type of fibres, that is to say some other fibres which are not modified cellulose. If I ask in a shop for a bowler hat and another type of hat, I do not expect to be given two bowler hats, differing only in their size or colour or whatever.”

[66] “…Asking, out of the context of claim 1, what a “type” is, is an example of meticulous over analysis of the words. Once you embark on asking the (wrong) question of what is a type, there is support in the specification for many different answers.”

Moving on to claim 3, the Judge explained that the term “modified cellulose fibres” was not a term of art and was “not a term which reader would think was meant to impose a tight limitation. The term is broad and is not intended to be limiting.” Accordingly, it was not limited to chemical modifications.

Infringement
Given the Judge’s construction of the claims, there was evidently no infringement:

[104] “The only gel forming fibres in Durafiber are made of CES, i.e. modified cellulose. In other words, as regards gel forming fibres, Durafiber uses modified cellulose alone and there is no other type of gel forming fibre present. Therefore on the true construction of the claims, Durafiber does not infringe claim 1.”
[105] “Moreover since claim 3 is dependent on claim 1, Durafiber does not infringe that claim either, irrespective of the issues of construction of claim 3.”

Validity
Moving to validity: by the end of the trial ConvaTec had accepted that claim 1 of the patent was anticipated and therefore invalid. Claim 3, stated to have independent validity, was attacked on grounds of obviousness – it being alleged to lack inventive step over three pieces of prior art (Qin, Lassen and ‘746) and the common general knowledge. Diving in to the issues, the Judge applied the Pozzoli reformulation of the classic Windsurfing test and sought to apply this to the facts. In respect of the first two pieces of prior art (Qin and Lassen), claim 3 passed muster – it was not obvious in their light. ‘746 deserves special mention.

‘746 was a PCT application published about a year before the priority date of the patent in suit. It is entitled “Wound dressings” and relates a wound dressing employing CMC (i.e. carboxymethyl cellulose – modified cellulose) fibres in the wound contacting surface. On the Judge’s construction the point did not arise, however, on ConvaTec’s proposed construction – assuming that the defendants’ product did infringe the claims – then it was alleged that the product of ‘746 would also fall within the patent’s scope of protection. As such, the patentees were evidently on the classic “horns of a dilemma”: the defendants alleging that there was nothing patentably distinct between ‘746 and their actions which were alleged to infringe. As the judge noted (at [170]) this was “a Gillette defence of the purest kind.”

Nevertheless, as construed by the Judge, the patent was safe from these challenges. It was also not obvious in light of the common general knowledge – this being a case in which one could legitimately ask “if it was obvious why was it not done before?”

Accordingly the patent was valid, in part, but not infringed.

By way of a reminder: IPCom (described by the Court of Appeal in previous litigation ([2011] EWCA Civ 6) as a “non practising entity”, i.e. a patentee with no business of its own in products covered by the rights it holds), owned a number of patents (which it had bought from Bosch) in the field of mobile communications technology. It originally approached Nokia offering to licence these rights, but Nokia refused to pay the sum that IPCom requested. IPCom therefore commenced infringement proceedings against the Finnish company in Germany. This riled Nokia who retaliated, seeking revocation of a number of the patents in Germany and the UK, and the dispute escalated into what has been described as “an international patent battle”.

Floyd J had previously dealt with matters between the two on a number of occasions and had produced three judgments (of 20th November 2009, [2009] EWHC 3034 (Pat) (“the first amendment judgment”); 18th January 2010, [2009] EWHC 3482 (Pat) (“the main judgment”); and 31st March 2010, [2010] EWHC 789 (Pat) (“the second amendment judgment”)). The parties, having taken a little time off to visit the Court of Appeal (which pronounced on the matter on the 20th January 2011, [2011] EWCA Civ 6 – noted by the IPKat here), were recently back before the Judge for another round. Floyd J’s latest decision in the matter was handed down yesterday.

This particular episode of litigation concerned IPCom’s European Patent (UK) No. 1 841 268, a divisional of European Patent (UK) No. 1 186 189 which had found fame in the previous round. The judge had found the parent patent invalid in his January 2010 judgment ([2009] EWHC 3482 (Pat)), and Nokia now sought the same fate for its offspring. IPCom, for its part, made a conditional application to amend the patent and also counterclaimed alleging infringement. Nokia denied this and also sought a declaration of non-infringement in relation to a series of other mobile phones.

Those who take delight in the technical aspects of the UMTS mobile telecommunications standard will, once again, be in seventh heaven reading this judgment. For the rest of the IP population, a summary will suffice. As the Judge explained (at [5]), the patent concerned a “method of managing the problem of contention on a random access radio channel uplink between mobile phones and a network base station.” Essentially, it offered a manner of regulating a UTMS mobile radio network so as to distinguish between various user classes and to dynamically prioritise certain mobile traffic over others. Priority traffic would gain direct access to the network, whereas other traffic would compete for access in a ‘lottery’.

The meat of the judgment revolves around the obviousness attack upon the patent’s validity, although a significant portion of the judgment is also directed to discussion of added matter. Insufficiency gains a brief look-in as well.

Validity
Cutting to the chase, Floyd J was not convinced that any of Nokia’s three prior art references rendered the invention obvious. The same fate befell Nokia’s final challenge – that the alleged invention was actually obvious in light of the common general knowledge (CGK). Despite this being described (at [116]) as “a very simple and attractive argument, untrammelled as it is by any of the details of a practical working system”, it was nevertheless considered to fail. The Judge concluding (at [123]) that even though the patented invention may not have achieved anything in terms of general functionality when compared with the prior art or CGK, “it does not follow that IPCom’s approach to achieving that functionality is obvious. It is entirely possible that invention lies in achieving the same functionality in a different way.”

Objections to the amendment of the claim based on added matter went the same way: all failed. Similarly, all objections on the basis of insufficiency were also rejected, the Judge concluding that:

[176] “…The patent would not be understood to be pretending that the invention would work without modification in whatever UMTS system was ultimately agreed. This case is nothing like a patent where there is a missing essential ingredient. The cross-examination of Mr Gould did not show that a system could not have been built based on the draft standards: it merely showed that it would not have been possible to guess what choices would be made in the final standards, and that if there was a difference the phone would not work.”

Infringement
Having concluded that IPCom’s patent was valid, the Judge went on to consider the question of infringement. He noted that there was a “Product and Process Description for each of 14 types of Nokia device designated “the A1”, “the A2”, “the B1”, “the B2”, “the C1”, “the C2”, “the D1”, “the D2”, “the E1”, “the E2”, “the F1”, “the F2” , “the G1”and “the G2”.” A1 and A2 were found to infringe, but the B to G devices were not. As the Judge explained:

[206] “The only case of infringement which IPCom could have advanced on these devices would have to be based on class barring. But they cannot espouse that construction because they have now accepted that on that construction the patent would be invalid over GPRS.”

Accordingly, a declaration of non infringement was granted in respect of the B to G devices.

With this round going, on balance, to IPCom the next instalment in the €12 billion European saga is eagerly awaited.

Presented with a large volume of evidence, Warren J considered that the matter was "finely balanced" but held the patent invalid for lack of inventive step in that fluvastatin was itself known for a long time before the patent was applied for and the sustained release formulations claimed in the patent were well known at the time. Since the skilled person, in the form of a research team, would know of these facts, it would be an obvious step to combine them. The patent was consequently found to be invalid for being obvious.
The same judge reminded us that the proper route to the determination of inventive step is via Pozzoli:

"I have to say I do not think that the two-bite approach [Merpel says, which are the two bites?] is actually a convenient way to deal with obviousness. It is, after all, a multi-factorial assessment. The thing to do is to identify all the relevant factors, orientate oneself à la Pozzoli and then decide whether the invention is obvious".

Says the IPKat, Pozzoli is a great case for big Kats, being possibly the first occasion on which Lions in the Path were linked with Paper Tigers in the same piece of judicial analysis.

Lion in the path here

Lions in the bath here

Paper Tigers here and here

Back in December a district court in Mannheim, Germany, put on hold an application by IPCom for injunctions to ban the sale and distribution of Nokia handsets in Germany, pending final decisions on the validity of the patents by the European Patent Office. These decisions are due later this year. IPCom is the owner of what used to be Bosch's mobile telephony patent portfolio, created between the mid-1980s and 2000, which includes about 160 patent families worldwide that are key for mobile communications standards.