Intellectual Property Law - Patent Law - Invalidity for Obviousness

The case of Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and A different [2007], concerned a patent for a medical device used in operations. The defendants owned a European patent for a device called a 'stent' used in coronary angioplasty. The 'stent' is inserted into a diseased artery during the procedure to preserve the artery open. The claims in the patent concerned a 'stent' coated with a polymer loaded with the drug taxol. This drug inhibited the development of tissue which may well result in the artery closing.

The defendants licensed the patent of this device to BS, a manufacturer of 'stents'. The claimant, who is a competitor of BS, sought to have the patent revoked on the grounds that the invention was apparent in the light of prior art. The judge held that it was obvious to have tested taxol, and thus the patent was invalid for obviousness. The defendant appealed.

The defendant's appeal was dismissed.

The question to be regarded as was whether the invention was apparent. In order to make this assessment, a quantity of variables had to be considered:

§ The attributes and typical common knowledge of the skilled man

§ The distinction between the claim and the prior art and

§ Whether or not there was a motive supplied or hinted by the prior art.

It was also held that:-

§ Oftentimes the commercial achievement of an invention could demonstrate that the concept was especially very good, whereas in other situations the truth that the notion may have been 'obvious to try' could come into an assessment. The most very important factor on the other hand was the nature of the invention.

§ The judge's selection need to stand.

§ This was considering the patent had not in any way demonstrated that taxol truly worked to avoid a diseased artery from closing, even although it had been tested. The judge was so appropriate to deem the patent invalid for obviousness.

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© RT COOPERS, 2007. This Briefing Note does not offer a comprehensive or total statement of the law relating to the problems discussed nor does it constitute legal guidance. It is intended only to highlight general difficulties. Specialist legal suggestions really should generally be sought in relation to certain circumstances.