Salts Healthcare v Pelican Healthcare: infringement, equivalence and IPEC costs on appeal

The Court of Appeal has dismissed Salts Healthcare's infringement appeal against Pelican Healthcare whilst allowing it on novelty and pre-transfer costs, in a judgement handed down on 19 February 2026 ([2026] EWCA Civ 93).

The dispute concerned UK Patent No. 2569212, which protects ostomy appliances incorporating internal weld portions designed to distribute waste more evenly, reducing bulging and sagging during use. Salts alleged that Pelican's ModaVi range infringed claims 5 and 8 of the Patent. The first instance judge dismissed the infringement claim, and the Court of Appeal upheld that decision.

Construction of the claims

Central to the appeal was whether Pelican's ModaVi bags contained weld portions that "extend away from a periphery of the appliance and downwardly towards a bottom of the appliance". The Court affirmed the Deputy High Court Judge's construction: the weld portion as a whole must extend downwardly, not merely its upper surface. A section of peripheral weld that simply changes direction does not satisfy this requirement. Lord Justice Arnold declined to re-write the claims to achieve the broader functional reading Salts advanced.

The doctrine of equivalents

Salts pursued infringement by equivalence in respect of the lobes of the closed ModaVi bag, applying the three Actavis questions. The Court confirmed the inventive concept of claim 8 as the provision of weld portions additional to the peripheral connection, positioned and shaped both to force waste upwards and to avoid trapping waste above them.

Questions 1 and 2 were answered in Salts' favour: the lobes achieved substantially the same result in substantially the same way. However, question 3 was answered against Salts for four cumulative reasons. The claims were formulated in structural rather than functional terms, with considerable specificity. The specification disclosed functional improvements only in relation to the specific weld portions depicted in the embodiments, without articulating any general principle. The presence of ten independent claims indicated the patentee had carefully considered the scope of protection. Critically, the downward extension requirement appeared in some independent claims but not others — a strong indication that what was claimed in claim 8 but absent from other claims was deliberately included, not inadvertent drafting.

Novelty of claim 8 as granted

The Court allowed the appeal on novelty, finding that Grum-Schwensen did not clearly and unambiguously disclose the relevant features of claim 8. The schematic and internally inconsistent nature of the drawings made it impossible to determine with certainty where the bottom of the bag lay when the outlet portion was folded. Pelican failed to demonstrate either explicit disclosure or inevitable result to the requisite standard.

Pre-transfer costs

The costs issue turned on whether IPEC scale cost limits applied to the pre-transfer phase of proceedings. The Court held that Practice Direction 30, paragraph 9.2(1) empowers IPEC to order that pre-transfer costs be assessed on the IPEC scale when making a transfer order. Where no such order is made, the receiving court retains a discretion. Here, HHJ Hacon had indicated pre-transfer costs should be assessed on the IPEC scale. The Patents Court judge erred by treating pre-transfer costs as entirely at large without identifying any good reason to depart from that indication. The Court varied the costs order accordingly, limiting Salts' pre-transfer costs liability to IPEC scale. The analysis applies equally to transfers of copyright and trade mark claims from IPEC to the High Court.

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