Ranbaxy v Warner-Lambert

An interesting decision of Mr Justice Pumfrey which as well as stirring old memories of organic chemistry provides useful guidance on patent construction (including what the court will consider relevant material) and obviousness tests (particularly selection patents).

Almost in passing, the judge confirmed that previous representations made to the Patent Office as to the meaning of patents were not relevant to present construction of those patents. The key test was, following the House of Lords in Kirin Amgen, what a person skilled in the art would have understood the claims to mean, proceeding from the basis that the language actually used is of "critical importance." However, an over-meticulous approach should not be adopted to grammar and language, if this would infer a meaning which the skilled person would not take from them. It's interesting to consider the possible anagolous relevance of this approach to statutory interpretation (a current obsession).

In terms of obviousness, the judge reviewed the differing approaches of Windsurfing and EPO problem/solution guidelines, and, in respect of selection patents, contrasted the English IG Farben, EI Du Pont de Nemours, Hallen v Brabantia and the EPO Hoechst/Thio chloroformates. Despite some interesting comments on finer points, and some criticism of the EPO's approach in this case, he considered that there was no real difference in the substantive laws on these issues. The key was whether the selected item (here, calcium salt) had been individually disclosed previously (as opposed to only as a class), part of this being whether its special individual features had been so disclosed. If not, then there was novelty.