Posted: January 20th, 2012
Apimed Medical Honey Limited v. Brightwake Limited, Court of Appeal, London, UK, 20 January 2012, Case No.  EWCA Civ 5
The patent claimed a composition (commercially available as Algivon) for a wound dressing combining honey with a "gelling agent". The gelling agent increases viscosity to the extent that it results in a flexible sheet or pliable putty which can be moulded to fit the wound, providing a way to retain the honey at the wound site. All but one of the examples in the patent relied on sodium alginate as "a gelling and viscosity increasing" agent. Apimed brought an infringement claim against the manufacturer, Brightwake, of an allegedly infringing product. Brightwake’s product was a sheet formed from calcium alginate fibres and then coated with honey. Brightwake counterclaimed for revocation of the patent on the grounds of lack of novelty and obviousness.
Held: on appeal, overturning the Patents County Court's finding of obviousness, Kitchin LJ focussed on the fact that the prior art paper taught solid honeys may be liquefied by warming and semi-solid honeys may often be liquefied by stirring. As such, the paper contemplated that the honey should be softened. This was contrary to the teaching of the patent. It also described the spreading of honey on a dressing pad or, alternatively, that it should be squeezed directly into a deep wound. There was no description of what may be said to be the heart of the invention of the Patent, namely the use of a gelling agent to increase the viscosity of the honey to such a degree that it can be formed into a flexible sheet or a pliable putty without the need for any separate dressing at all. There had been an error of principal by the first instance judge, because he had failed to identify the above differences between the prior art and the invention and whether those differences, without any knowledge of the invention, would have been obvious to the person skilled in the art.
Kitchin LJ follows the approach established last year in Schlumberger Holdings (which may be read here) that in some cases, where the patent is ‘art changing’ the person skilled in the art may not be the same for the purposes of obviousness on the one hand, and the claim interpretation and insufficiency on the other. However, this was not such an art changing patent. Therefore, Schlumberger will not always apply.
The Court of Appeal upheld the first instance finding of novelty and non-infringement. There was a squeeze, such that if Brightwake’s product was covered by the patent then it must also be anticipated by the prior use of certain dressings, for which there was evidence by a nurse practising in a hospital Eastbourne.
Read the judgment (in English) here.
Head note: Paul England