Smith & Nephew Plc v Convatec Technologies Inc & Anor

Smith & Nephew Plc v Convatec Technologies Inc & Anor

The correct construction of the claim range 'between 1% and 25%' is based on significant figures, setting the lower limit at 0.95%. Smith & Nephew’s commercial process for Durafiber Ag, with a salt concentration of 0.77%, does not infringe Convatec’s 510 patent. The four development experiments conducted by Smith & Nephew in 2009/2010 did infringe the patent, as the salt concentrations exceeded 0.95% when carryover was accounted for using the Process Description figures. However, any unwarranted advantage gained by Smith & Nephew from the infringement has expired, as they have stayed off the UK/European market until judgment, and would have obtained CE mark approval by now had they not...

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 Declaratory Relief / Final Judgment After Trial
Outcome
Claim for declaration of non-infringement allowed; counterclaim for infringement partially allowed; application for springboard injunction refused.
Legal Topics
Patent Infringement, Claim Construction, Springboard Injunction, Regulatory Approval, Experimental Use Exception
Intellectual Property Patent Law Patent Infringement Claim Construction Springboard Injunction Regulatory Approval Experimental Use Exception

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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 Declaratory Relief / Final Judgment After Trial

Legal Issues

  1. 1 Does Smith & Nephew’s Durafiber Ag process infringe Convatec’s European Patent (UK) No. 1,343,510?
  2. 2 What is the correct construction of the claim range 'between 1% and 25%'?
  3. 3 Did Smith & Nephew’s development experiments infringe the patent?

Ratio Decidendi

The correct construction of the claim range 'between 1% and 25%' is based on significant figures, setting the lower limit at 0.95%. Smith & Nephew’s commercial process for Durafiber Ag, with a salt concentration of 0.77%, does not infringe Convatec’s 510 patent. The four development experiments conducted by Smith & Nephew in 2009/2010 did infringe the patent, as the salt concentrations exceeded 0.95% when carryover was accounted for using the Process Description figures. However, any unwarranted advantage gained by Smith & Nephew from the infringement has expired, as they have stayed off the UK/European market until judgment, and would have obtained CE mark approval by now had they not...

Court Disposition

Claim for declaration of non-infringement allowed; counterclaim for infringement partially allowed; application for springboard injunction refused.

Orders

  • Smith & Nephew’s commercial process for Durafiber Ag does not infringe Convatec’s 510 patent.
  • Smith & Nephew’s development experiments 40, 43, 44, and 48 infringed the 510 patent.