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CONOR MEDSYSTEMS INC v (1) ANGIOTECH PHARMACEUTICALS INC (2) BRITISH COLUMBIA UNIVERSITY

Where a speculative patent disclosed enough information to make the efficacy of its product plausible, there was no reason why the question of obviousness should be subject to a different test according to the amount of evidence produced by the patentee to show that his product worked.

22 July 2008

The appellant patentees (X) appealed against a decision ([2007] EWCA Civ 5, [2007] RPC20) that their patent was invalid for obviousness. X held a European patent which included a claim for a stent coated with taxol, an anti-proliferative drug, which were used together to treat or prevent restenosis. The respondent competitor (C) had applied in both the UK and the Netherlands for revocation of the patent, arguing that X’s patent merely asserted that taxol was worth trying, and did not show that it actually worked. The UK courts accepted C’s argument. The Court of Appeal found that X‘s claim added nothing to existing knowledge and was obvious. The courts in the Netherlands found that it was sufficient for X to indicate that taxol would work and C’s application failed. X appealed on the basis that the decision of the Dutch court was correct and its patent was valid.

HELD: (1) European patents took effect as a bundle of national patents over which the national courts had j...

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