Cook UK Ltd v Boston Scientific Ltd
| Jurisdiction | England & Wales |
| Judge | Forsyth |
| Judgment Date | 30 August 2023 |
| Neutral Citation | [2023] EWHC 2163 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Claim No: HP-2022-000007 |
and
and
[2023] EWHC 2163 (Pat)
Mr Campbell Forsyth
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Claim No: HP-2022-000007
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
PATENTS COURT (ChD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Iain Purvis KC and Tom Alkin (instructed by Powell Gilbert LLP) appeared for the Claimant and Fourth to Seventh parties
James Abrahams KC and Michael Conway (instructed by Simmons & Simmons LLP) appeared for the Defendants and Third party
Hearing dates: 21, 22, 23, 24, 27 February and 1 March 2023
APPROVED JUDGMENT
I direct that pursuant to CPR 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
DEPUTY JUDGE
This is a patent action. It was originally commenced under the Shorter Trials Scheme as a revocation claim by Cook. Matters developed to incorporate a second patent, counterclaims for infringement and additional parties. As a result, the action was transferred out of the Shorter Trials Scheme. For the purpose of this short judgment I shall refer to the Boston Scientific companies bringing the patent infringement claims as Boston and the Cook companies defending and claiming for revocation of the patents as Cook.
Boston claims infringement of two patents; European Patent (UK) 3 023 061 (the 061 Patent) entitled “Endoscopic device for causing hemostasis” and European Patent (UK) 3 443 915 (the 915 Patent) entitled “Apparatus for deployment of a hemostatic clip” (together “the Patents”). The Patents both concern the use of clips deployed using endoscopes for the treatment of gastroenterological conditions, in particular to reduce bleeding by mechanical haemostasis.
Cook denies infringement and claims the Patents are invalid.
The 061 Patent expired on 20 th September 2022. The application for the 915 Patent was filed on 30 th September 2004 and granted on 24 th March 2021.
Both the Boston and Cook companies are part of corporate groups which develop, manufacture and supply medical devices, including, of relevance here, in the field of gastroenterology and haemostatic clips.
The trial was conducted in the Patents Court over 6 hearing days and was followed by the provision of a number of post-trial submissions.
Prior to the judgment being completed the parties concluded a settlement of the proceedings. It is positive news the parties have been able to reach a resolution to the dispute. In the circumstances, it would be usual for the court to make an appropriate order at this point without the need for any judgment. In this case there was one issue before me at trial which, as it turned out, I did not need to determine but where I would like to comment.
During the trial there were various arguments about whether the trial witness evidence complied with PD57AC. Those issues are now resolved along with the proceedings.
Boston also took issue with a Cook application dated 9 th November 2022 under paragraph 4.4 of PD57AC (“the Application”). The Application was for the certificate of compliance required by paragraph 4.3 of PD57AC to be varied.
Dealing with the application, Mr Justice Mellor made an Order dated 16 th November 2022 (“the Order”). The Order provided that the Cook witness statements of Dr Neil Hawkes, Dr Srisha Hebbar, Dr Imdadur Rahman and Mr Michael Brecht may be modified, “…so as to include reference to those provisions (and specific parts thereof) of the Statement of Best Practice with which it was not possible to comply during the preparation of the witness statement.”. As envisioned by paragraph 4.4 of PD57AC, the Application was without notice and the decision made on the papers without an oral hearing. Reasons were set out at the end of the Order.
Boston argued in relation to the Application that it should be provided with Cook's application notice and supporting evidence. It referenced CPR rule 23.9. Cook denied Boston was entitled to see these documents. In the end, Boston made...
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