Smith & Nephew Plc v Convatec Technologies Inc & Anor [2013] EWHC 3955 (Pat) (12 December 2013)

Smith & Nephew Plc v Convatec Technologies Inc & Anor [2013] EWHC 3955 (Pat) (12 December 2013)

The phrase 'between 1% and 25%' in the patent claim is construed by reference to significant figures: the lower boundary is 0.95%. Smith & Nephew's commercial process (0.77% salt) does not infringe. The development experiments' salt concentrations, after considering carryover, were not shown on the balance of probabilities to be outside the claim; thus, Convatec did not discharge the burden of proving infringement for those experiments. No springboard injunction is granted as infringement was not established for the development work.

Citation
[2013] EWHC 3955 (Pat)
Parties
Claimant: Smith & Nephew plc; Defendant: Convatec Technologies Inc.; Third Party: T. J. Smith & Nephew Ltd; Third Party: Smith & Nephew Medical Ltd
Jurisdiction
England and Wales
Judgment Date
12 December 2013
Procedural Posture
Patent Infringement and Non Infringement Declaration / High Court Trial Judgment
Outcome
Claim for declaration of non-infringement by Smith & Nephew succeeds; Convatec's counterclaim for infringement and springboard injunction fails.
Legal Topics
Patent Claim Construction, Numerical Range Interpretation, Infringement Analysis, Springboard Injunctions
Intellectual Property Patents Patent Claim Construction Numerical Range Interpretation Infringement Analysis Springboard Injunctions

Case Brief

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Parties

Smith & Nephew plc

Claimant

Convatec Technologies Inc.

Defendant

T. J. Smith & Nephew Ltd

Third Party

Smith & Nephew Medical Ltd

Third Party

Procedural Posture

Patent Infringement and Non Infringement Declaration / High Court Trial Judgment

Legal Issues

  1. 1 Proper construction of the phrase 'the agent being present in a concentration between 1% and 25% of the total volume of treatment' in EP (UK) 1,343,510
  2. 2 Whether Smith & Nephew's commercial and development processes infringe the patent under the correct construction
  3. 3 Whether springboard relief is appropriate if development work infringed

Ratio Decidendi

The phrase 'between 1% and 25%' in the patent claim is construed by reference to significant figures: the lower boundary is 0.95%. Smith & Nephew's commercial process (0.77% salt) does not infringe. The development experiments' salt concentrations, after considering carryover, were not shown on the balance of probabilities to be outside the claim; thus, Convatec did not discharge the burden of proving infringement for those experiments. No springboard injunction is granted as infringement was not established for the development work.

Court Disposition

Claim for declaration of non-infringement by Smith & Nephew succeeds; Convatec's counterclaim for infringement and springboard injunction fails.

Orders

  • Declaration of non-infringement granted to Smith & Nephew for the commercial process.
  • No injunction or springboard relief granted against Smith & Nephew.