On
19 June the Court of Appeal gave judgment in Jushi v OCV [2018] EWCA
Civ 1416, an appeal from the Intellectual Property Enterprise Court (IPEC). The
case concerned a patent for glass fibre strands for use in fibre-reinforced
composite materials. The main issue on the appeal was the validity, or
otherwise, of a claim which included numerical limits. There were several
ranges in the claim, the most relevant one being a requirement that the ratio
of calcium oxide to magnesium oxide be "≤ 2, preferably ≥ 1.3".
In
the wake of last year's Supreme Court judgment in Actavis v Eli Lilly [2017]
UKSC 48, one issue that has remained unresolved is whether the scope of
protection of a claim for infringement, including by equivalents, remains the
same as the claim's scope validity. In Mylan [2017] EWHC 2629
(Pat) Arnold J held obiter that the
previous symmetry of infringement and validity no longer held. However, the
issue has not been addressed in detail since.
What
is apparent, however, is that the Court of Appeal did not discuss any arguments
about equivalents. It may be that Jushi felt unable to run any such argument on
the facts, or that it felt precluded from doing so in the context of a validity
argument. Whatever the reasons, a case which, at least from the outside, would
appear to have offered an opportunity for debate about the application of the
principles of equivalence contains no reference to the Actavis decision
at all. Whether this is merely a reflection of the parties' choice of arguments
or whether it reflects, at least in part, a desire by the Court of Appeal to
minimise the change in approach to the majority of patent cases notwithstanding Actavis is
not an easy question to answer.
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