Patent updates: Novartis v Johnson; an eye for an eye.

Novartis AG and Cibavison AG -v- Johnson & Johnson Medical Limited

The sale of Acuvue Oasys (“Oasys”) was said to infringe European Patent UK No 0,819,258 (“258”). 258 sought to protect the idea that contact lenses could be left in the eye overnight or even for several days.

The first and second claimants were proprietors and exclusive licensees of 258 and they contended that the defendants infringed the patent by selling certain contact lenses in the United Kingdom.

The defendants denied infringement and counterclaimed for revocation contending that it lacks novelty, it is obvious and it is insufficient.

It was held that Oasys fell in the scope of claims 1 and 24, but not claims 8 or 11. The Claimants successfully managed to defend the attacks of novelty and obviousness however the Patent was invalid for insufficiency.

The insufficiency argument succeeded and attacked the whole specification. The defendants contended that the teaching of the Patent did not provide sufficient information for the person skilled in the art to make contact lenses within or across the range of the claims without undue experimentation.

A patent specification is addressed to those persons likely to have a practical interest in the subject matter of the invention, and such persons will have practical knowledge and experience of the kind of work in which the invention is intended to be used. However the specification was drafted similar to a puzzle and as a consequence was invalid.

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