Patents: Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and Others
In his speech in C
"A stent for expanding the lumen of a body passageway, comprising a generally tubular structure coated with a composition comprising an anti-angiogenic factor and a polymeric carrier, the factor being anti-angiogenic by the CAM assay, and wherein said anti-angiogenic factor is taxol, or an analogue or derivative thereof."
but purportedly the idea of seeking to treat or prevent restenosis by coating a stent with a taxol/polymer composition. Having misrepresented the invention the claim was rubbished:
"The disclosure is of no more than this. The idea is not shown to work (either in humans or in animals), nor to work to any particular extent, nor to work with any particular polymer nor with any particular amount of drug. The invention thus lies in the idea of trying some, one or more, taxol/polymer combinations to determine whether restenosis can thereby be treated. It is at this level of generality that inventiveness must be assessed."
Lord Hoffmann described that submission as
"an illegitimate amalgam of the requirements of inventiveness (article 56 of the EPC) and either sufficiency (article 83) or support (article 84) or both".
On the face of it his lordship seems to have had a point.
The test for obviousness is well settled and straightforward. It is whether the invention would have been obvious to a skilled person in the art. Essentially that is a question of fact A well established methodology for applying that test first formulated by the Court of Appeal in Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd,  RPC 59 and restated recently by the Court of Appeal in