Patent litigation: expedited cases and numerical limits
16 December 2016
In our October 2016 newsletter we commented on patent litigation in the UK in the light of Brexit. As we noted there, UK patent litigation proceedings have a strong reputation for quality, which will endure, and real efforts are being made to improve costs and efficiency.
Speed and flexibility in the UK
The recent case of Napp Pharmaceutical Holdings Limited v Dr Reddy's Laboratories (UK) Limited and Sandoz Limited  EWCA Civ 1053 highlights two other highly user-friendly aspects of UK patent litigation: speed and flexibility. This case is an excellent illustration of both as it proceeded extremely quickly thanks to active and flexible case management by the courts.
The action was commenced on 19 February 2016, and included an application for a preliminary injunction. The court at first instance, recognising the commercial urgency involved, ordered an expedited trial to be heard in early June, that decision in turn leading to an undertaking by the defendants not to launch a product before determination of the claim (which removed the need for an injunction itself, which can require a substantial application to the court). The first instance court found in favour of the defendants but gave leave to appeal, extending the interim relief (undertaking) pending that appeal. In turn, the Court of Appeal heard the case at the beginning of August, and gave its oral decision (rejecting the appeal) on 02 August 2016. The case therefore went from commencement to final determination on appeal in less than six months. This is a very good illustration of the flexibility and speed with which the UK courts can operate.
Numerical limits revisited
Substantively speaking, the case involved further consideration of the meaning of numerical limits in patent claims. We reported a review of UK case law in our August 2015 newsletter, in particular the case of Smith & Nephew v ConvaTec  EWCA Civ 607. That case reiterated the basic point that, as with all claim limitations, the overriding approach is purposive construction, such that the meaning of the limitation must be derived from an objective assessment of what the patentee was intending to mean by using it.
In this case, the claim involved numerical limits or ranges of "10%", "10% to 15%" and "about 10%". The defendants had argued that as each limit was expressed in terms of whole numbers, each should be interpreted as including figures that conventionally round to these as the nearest whole number. The patentee on the other hand argued that a broader interpretation should apply inter alia because each element was expressed in steps of 5% in the patent itself. The patentee contended that in the claim therefore 10%, for example, could cover amounts up to 15%.
The first instance court had disagreed with this approach, finding for the defendants. The Court of Appeal agreed. The Court of Appeal noted that patent claims were not supposed to be a puzzle game in which the skilled person must theorise as to what degree of precision was intended. A patentee who wanted to cover a range of 7.5% - 12.5%, for example (which the defendant argued would be within the meaning of 10%), could easily have said so expressly in the claim.
On this basis, the Court of Appeal confirmed that the figures in the claims were indeed expressed to the nearest whole number and therefore "10" meant "9.5 -10.5". The court also agreed with the judge at first instance that the addition of the word "about" merely added a slightly more generous degree of imprecision to the meaning of "10%" than would be allowed with rounding conventions. In this case, "about 10" meant "9 to 11%".
- 'UK patent litigation in the light of Brexit', Richard Willoughby, October 2016: www.dyoung.com/article-brexitpatentlitigation
- Napp Pharmaceutical Holdings Limited v Dr Reddy's Laboratories (UK) Limited and Sandoz Limited  EWCA Civ 1053: http://dycip.com/ewcaciv20161053
- Smith & Nephew v ConvaTec  EWCA Civ 607: http://dycip.com/ewcaciv2015607