Apimed Medical Honey Ltd (a Company Incorporated in New Zealand) v Brightwake Ltd (trading as Advancis Medical)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Etherton,Lord Justice Toulson |
| Judgment Date | 20 January 2012 |
| Neutral Citation | [2012] EWCA Civ 5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2011/0402 |
| Date | 20 January 2012 |
[2012] EWCA Civ 5
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PATENTS COUNTY COURT
His Honour Judge Fysh QC
PAT 09108
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
Lord Justice Etherton
and
Lord Justice Kitchin
Case No: A3/2011/0402
Richard Miller QC and Geoffrey Pritchard (instructed by Reynolds Porter Chamberlain LLP) for the Appellant
Thomas Mitcheson (instructed by the Treasury Solicitor) for the Comptroller General of Patents
Hearing dates: 12/13 December 2011
Introduction
This is a dispute about honey and its use in medical dressings. The appellant ("Apimed") is the proprietor of European Patent (UK) No 1,237,561 ("the Patent") for an invention entitled "Medical dressings comprising gelled honey". In this action it claimed that the defendant ("Brightwake") had infringed the Patent by making and selling a medical dressing called Algivon. Brightwake denied infringement and counterclaimed for revocation of the Patent on the grounds that it lacked novelty or was obvious.
The action came on for trial before HHJ Fysh QC in the Patents County Court. In his judgment handed down on 14 January 2011 he held that the Patent was not infringed and was invalid for obviousness. He rejected the allegation of lack of novelty.
Apimed, represented by Mr Richard Miller QC and Mr Geoffrey Pritchard, now appeals against the finding of invalidity. It originally also appealed against the finding of non-infringement. However, Apimed and Brightwake have reached a settlement in respect of this appeal and consequently Brightwake no longer has any interest in its outcome. Accordingly, the finding of non-infringement is not pursued. Apimed nevertheless wishes to establish that the Patent is valid and, in accordance with the guidance given by this court in Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] EWCA Civ 185; [2006] RPC 26, the Comptroller was invited to consider whether he wished to appear or make written submissions on the appeal on the basis that his costs would be borne by Apimed. The Comptroller indicated that he did indeed wish to appear and has been represented on this appeal by Mr Mitcheson. He has properly recognised that the Comptroller's role is to protect the public interest by intervening to the extent necessary to prevent invalid patents being restored to the Register. He has assisted the court considerably by rehearsing the counter-arguments to Apimed's appeal, while at the same time maintaining a balanced view consistent with his position.
This issue on this appeal is therefore whether the judge was right to hold the Patent invalid for obviousness. Mr Miller contends that the judge fell into error for a raft of reasons to which I shall shortly turn. Mr Mitcheson says that the judge was right, essentially for the reasons he gave.
I should also mention that, despite his finding that the allegation of lack of novelty failed, the judge said at [128] that the Patent was invalid both for lack of novelty and obviousness. This was plainly a mistake and I need say no more about it.
The Patent
The curative properties of honey have been known since ancient times. Professor White, who gave expert evidence on behalf of Brightwake, explained that the use of honey for treating wounds is described in the Ebers Papyrus which was written in about 1500 BC and the Patent itself says its use for this purpose is recorded in 4000 year old Sumerian clay tablets.
Honey did not, however, find a place in modern wound care, at least in the UK. Conventional treatments have involved the use of gauze dressings and, more recently, hydrocolloid dressings which provide a moist wound environment which is thought to be beneficial for wound healing.
Nevertheless, the early 1990s saw a resurgence of interest in the biological properties of honey and its use in wound healing prompted by a growing body of evidence that it has a complex combination of activities which give it anti-microbial and anti-inflammatory properties. One of the most prominent researchers in the field has been Professor Molan, the inventor of the Patent.
The Patent has a priority date of 9 December 1999 and the specification begins with a description of the technical field. It explains that the invention is directed to the use of honey in medical dressings and that the honey is modified with a gelling agent, resulting in compositions in the form of a flexible sheet or a pliable putty which can be used as a wound covering.
The specification then describes the background to the invention, the use of honey in treating wounds for thousands of years and the recent attention it has attracted with the discovery that its effectiveness is due primarily to its anti-microbial properties.
It continues that recent investigations have involved attempts to maintain raw honey in contact with a wound as part of a moist dressing. However, the methods used in these investigations, though useful for trial purposes, are said to be relatively time consuming and impractical for a number of reasons. First honey is runny at body temperature and so is difficult to retain at the wound site. Second, many wounds exude moisture which dilutes the honey, reducing its effectiveness and making it even harder to contain.
The problem addressed by the Patent is thus identified in paragraph [0017] as being the provision of a composition which allows the potential use of honey as a practical dressing for wounds and other medical uses to be realised.
Against this background, the specification then proceeds to disclose the invention. In substance it is the provision of a medical composition for dressing wounds comprising the combination of honey with one or more natural based gelling agents, in which the amount of gelling agent is such that the resulting composition takes the form of a flexible sheet or pliable putty that can be readily moulded to fit the wound to which it is to be applied, and in which at least 50% (by weight) of the composition is honey.
Paragraph [0048] explains that such a putty may be moulded or plied into shape by finger pressure so allowing the thickness of the resulting composition to be varied, and allowing it to be moulded for use in particular applications and locations.
Paragraphs [0050] and [0051] continue that the invention may also take the form of a sheet which can be laid over a wound. This may be pre-formed into a particular shape or size or cut or trimmed as required. Typically such a sheet will be flexible enabling it to accommodate different contours and major irregularities on the surface to which it is applied.
Paragraph [0057] explains that the invention may, in its simplest form, be implemented by combining honey with a suitable viscosity increasing agent. The specification continues that there are a number of suitable such agents available, including gums and polysaccharides, alginates, and both synthetic and natural polymeric compounds, all of which are well known in the art.
The specification then contains a series of examples. Example 1, described in paragraphs [0070] to [0076], is of some importance to this appeal. It involves the use of sodium alginate as the gelling and viscosity increasing agent. It explains that finely powdered sodium alginate is blended with honey warmed to approximately 60°C, but not to any significantly higher temperature so as to avoid degradation of any hydrogen peroxide producing enzymes in the honey. It continues that as the alginate slowly dissolves and absorbs water from the honey, a gel begins to form and that the mixture should therefore be stirred so that any unblended and ungelled alginate does not settle out. The blend of honey and alginate may then be either rolled into a sheet or formed into a putty. In addition, fillers and additives such as fibres may be introduced while the gelling process is occurring.
The specification concludes with a series of claims. For the purposes of this appeal, I need only to refer to claim 1 which calls for:
(i) a medical composition for dressing wounds comprising
(ii) the combination of one or more honeys with one or more natural based gelling agents,
(iii) wherein the amount of gelling agent in the composition is such that the resulting composition is in the form of a flexible sheet or
(iv) a pliable putty that can be readily moulded to fit the wound to which it is to be applied,
(v) and wherein at least 50% (by weight) of the composition is honey.
The skilled addressee
A patent specification is addressed to those likely to have a practical interest in the subject matter of the invention and practical knowledge and experience of the kind of work in which the invention is intended to be used: Catnic Components Ltd v Hill Smith Ltd [1982] RPC 183 at 242 to 243. The claims of the patent must be understood as if read by him and he is the person who must be considered for the purpose of assessing obviousness and sufficiency. More recently, in Schlumberger Holdings LtdElectromagnetic Geoservices AS [2010] EWCA Civ 819, [2010] RPC 33 Jacob LJ, with whom Sullivan and Waller LJJ agreed, explained that, in the case of some inventions, notably those where the patent itself can be said to be 'art changing', the person skilled in the art may not be the same for the purposes of obviousness on the one hand, and claim interpretation and insufficiency on the other.
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