Patents - Abbott Diabetes Care Inc v Dexcom Inc.

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Jane Lambert

Patents Court (Mr Justice Mellor) Abbott Diabetes Care Inc and others v Dexcom Incorporated and others  [2024] EWHC 36 (Pat)

This was the first of three trials between Abbott Diabetes Care Inc. and its subsidiaries ("Abbott") and Dexcom Incorporated and its subsidiaries ("Dexcom") over patents owned by those companies in the field of continuous glucose monitoring ("CGM").  Abbott sued Dexcom for infringing EP (UK) 2 146 627 ("EP627") entitled "Method and Apparatus for Providing Data Processing and Control in Medical Communication System" and EP (UK) 2 476 223 ("EP223") entitled "Methods and Articles of Manufacture for Hosting a Safety Critical Application on an Uncontrolled Data Processing Device". Dexcom counterclaimed for revocation of both patents on grounds of lack of novelty and inventive step and insufficiency. Dexcom sued Abbott for infringing EP (UK) 2 914 159 ("EP159") and EP (UK) 3 782 539 ("EP539") and Dexcom counterclaimed for revocation on grounds of lack of novelty and inventive step and insufficiency.  Mr Justice Mellor tried these actions and counterclaims on 30 Nov, 2, 5, 6, 7, 12 and 13 Nov 2023 and handed down judgment on 15 Jan 2024 (Abbott Diabetes Care Inc and others v Dexcom Inc. and Others [2024] EWHC 36 (Pat)).  By para [622] of his judgment, the learned judge found that EP627 had been anticipated but would have been infringed had the patent been valid. He also held that claim 1 of EP223 had been anticipated and would not have been infringed.  As for Dexcom's patents, he held that EP529 and EP159 were anticipated and obvious but would have been infringed had they been valid.

Structure of the Judgment

Because he had 4 patents to consider this judgment contained 625 paragraphs.  His lordship discussed the expert witnesses and their evidence between para [12] and para [16], common general knowledge ("CGK") between [17] and [123], EP627 between [124] and [240], EP223 between [241] and [485] and EP159 and EP539 between [486] and [620].

Abbott's Patents

EP627

This is a patent for a CGM  which notifies a patient of a glucose condition while continuing to operate.  The patient receives an alert referred to as "the first indication" while the device is running and then a second more noticeable "second indication" after the device has finished its task.  The invention is described in more detail between para [133] and [138] of Mr Justice Mellor's judgment.  Claim 1 broken down into integers is as follows.  The expressions that the judge considered to be in issue are underlined:

1	A method comprising
1.1	executing, on a receiver unit (104, 106), a predetermined routine associated with an operation of an analyte monitoring device (1010);
1.2	detecting a predefined alarm condition associated with the analyte monitoring device (1020);
1.3	outputting, to a user interface of the receiver unit, a first indication associated with the detected predefined alarm condition during the execution of the predetermined routine (1030); and
1.4	outputting, to the user interface of the receiver unit, a second indication associated with the detected predefined alarm condition (1040); wherein
1.5	the second indication is output after the completion of the execution of the predetermined routine;
1.6	the predetermined routine is executed without interruption during the outputting of the first indication;
1.7	the first indication includes a temporary indicator and,
1.8	further, the second indication includes a predetermined alarm associated with the detected predefined alarm condition; and
1.9	the predetermined routine includes one or more processes that interface with the user interface of the receiver unit.

At para [143], the judge  set out the integers of the claim by reference, first, to the stated characteristics of the predetermined routine ("PDR") and, secondly, the chronological sequence of events in the following structure:

"i) The PDR is executed on the receiver unit, which has a user interface.
ii) It must be associated with an operation of an analyte monitoring device.
iii) It must include one or more processes that interface with the user interface of the receiver unit.
iv) During the execution of the PDR, a first indication is output to the user interface associated with the detected predefined alarm condition (which alarm condition is associated with the analyte monitoring device).
v) The PDR must execute without interruption during the output of the first indication.
vi) The first indication (which (as above) is associated with the detected predefined alarm condition) includes a temporary indicator.
vii) After the completion of the execution of the PDR, the second indication is output, the second indication being associated with the detected predefined alarm condition.
viii) The second indication includes a predetermined alarm associated with the detected predefined alarm condition."

The other disputed claim was claim 5:

5	The method of claim 1 wherein
5.1	the second indication is active at the end of the predetermined routine.

Alleged Infringement of EP627

Abbitt alleged that Dexcom;;s G6, G7 and D1 devices infringed EP627.

Applicable Law

I discussed s.60 (1), s.125 (1) and (3) and art 1 of The Protocol on the Interpretation of Article 69 of the European Patent Convention in Patents and Registered Designs: Safestand Ltd v Weston Homes PLC on 18 May 2024.  The judge's task was to construe claims 1 and 5 as they would be understood by the skilled addressee using the common general knowledge in accordance with the guidance contained in s.125 (3) and art 1 of the Protocol and then consider whether any of Dexcom's devices fell within the construction.

Skilled Addressee

The parties agreed at para [139] that the skilled addressee would be an engineer (such as a systems engineer, biomedical engineer or electrical engineer, but not necessarily from any specific engineering discipline) specializing in the design of medical devices and would have experience in CGM design,

Construction of Claim 1 of EP627

The judge discussed Abbott's proposed construction of claim 1 between [144] and [147] and Dexcom's response at [148]. The parties' submissions on the meaning of "predetermined routine" and the nature of the "second indication" were set out between paras [150] and [152].  His lordship set out his analysis between [153] and [171]. 

Construction of Claim 5 of EP627

Abbott's contention and the judge's observation on the construction of claim 5 appear at paras [172] and [173].

Finding on Infringement of EP627

Abbott's submissions appear in paras [175] and [176] and Dexcom's between para [177]  and [189],  Having considered the respective arguments Mr Justice Mellor concluded at [195] that Dexcom's G6 infringed claim 1 of EP627.

Dexcom's Counterclaim for Revocation of EP627

As I wrote in Patents and Registered Designs: Safestand Ltd v Weston Homes PLC the Court and Comptroller may revoke a patent under s.72 (1) of the Patents Act 1977 on the ground that the invention is not patentable.  I also stated that the conditions for the grant of a patent are set out in s.1 (1).  One of those conditions is the involvement of an inventive step which I discussed at some length in my article. Another is novelty.  S.2 (1) of the Act provides that an invention shall be taken to be new if it does not form part of the "state of the art."   I wrote about the state of the art in my earlier article and it should be noted that there is an extra subsection (3) which extends the meaning of the state of the art" for novelty purposes though the issue does not arise in this case,

Dexcom relied on two items of prior art:

• its own user guide to its first CGM device known as "the STS Guide", and 
• US patent number US7860492B2 for a Method and device for inhibiting interruption of a running application by an event ("Bunte").

It contended that the STS Guide had anticipated Abbott's invention and that the invention was obvious over Bunte.

The STS Guide

An invention is anticipated if the prior art would have infringed the patent had it appeared after the patent in suit.  It is thus necessary to construe the claims as they would be understood by the skilled addressee in the light of the common general knowledge, As claims 1 and 5 had already been construed to ascertain whether there had been an infringement the judge had only to decide whether the STS Guide fell within either of the claims.

His lordship described the STS Guie between para [197] and para [202].   He set out Dexcom's case between [203] and [210] and Abbott's answer between [211] and [214].  He concluded at [215] that EP267 lacked novelty over the STS Guide,

Bunte

I mentioned s.3  of the Patents Act 1977 and the Windsurfing/Pozzoli test in Patents and Registered Designs: Safestand Ltd v Weston Homes PLC.  The judge did not refer to the test but he had carried out all its requirements.  He had identified the skilled addressee and his common general knowledge.  He had construed claims 1 and 5 and had identified the prior art.  He appears to have carried out the fourth and fifth stages of the Windsurfing/Pozzoli test between [218] and [237].  He concluded at [238] that EP267 was not obvious over Bunte.

EP223

This invention relates to a method of checking that a CGM application that operates on a smartphone or other device is installed and functioning properly.  The invention is described in more detail from para [303] to [333].   Since it had only recently been possible to load CGM software onto smartphones Abbott wished to make clear the circumstances in which the invention was launched   Mr Justice Mellor set out Abbott's contentions as to the technical context of EP223 at its priority date between [243]  and [249].

EP233's Skilled Addressee

As the parties had been unable to agree on a skilled addressee the judge held at [255] that "EP223 was clearly addressed to a person or team which straddled both the pre-existing dedicated devices which required the writing of bespoke software and the more recent requirements of writing software for use in the smartphone environments which were, by the Priority Date, already well established and clearly predicted only to grow in significance."

CGK for EP233

Although the parties had prepared a single common general knowledge statement that identified what was agreed and not agreed on all 3 priority dates, the judge preferred to separate the CGK relating only to EP223 which covered mobile phone technology in 2009 and regulatory considerations for medical device software from the rest because it was self-contained and relevant only to that patent. He discussed the largely agreed common general knowledge between [256] and [271] and resolved the issues in dispute between [272] and [302].

EP233 Claims

The disputed claims were Claim 1, 7 and 9.

Claim 1 broken down into integers is as follows:

1	A method for hosting a safety critical application on an uncontrolled data processing device,
1.1	the uncontrolled data processing device being configured to permit a user to make software and/or hardware changes to the uncontrolled data processing device,
1.2	the method comprising:
1.2(a)	determining, with an uncontrolled data processing device, whether a safety critical application is installed properly and functions properly on the uncontrolled data processing device;
1.2(b)	preventing, with the uncontrolled data processing device, certain features of the safety critical application from operating on the uncontrolled data processing device upon verification that the safety critical application did not install properly or does not function properly on the uncontrolled data processing device,
1.2(c)	wherein the preventing comprises disabling safety critical features of the safety critical application from being executed on the uncontrolled data processing device and
1.2(d)	enabling non-safety critical features of the safety critical application to be executed on the uncontrolled data processing device; and
1.2(e)	permitting, with the uncontrolled data processing device, the safety critical application to operate free of any restrictions on the uncontrolled data processing device upon verification that the safety critical application is installed properly and functions properly on the uncontrolled data processing device,
1.3	wherein the safety critical application is a medically-related application and the uncontrolled data processing device is a wireless personal device comprising a display,
1.4	the uncontrolled data processing device being in data communication with at least one of an analyte monitoring device, a drug administration device, or a combination of both an analyte monitoring device and a drug administration device
1.5	wherein the uncontrolled data processing device is a mobile phone

Claim 7 is as follows:

7	The method of any of the preceding claims, comprising:
7.1	identifying, with the uncontrolled data processing device, a first current environment of the uncontrolled data processing device, the first current environment associated with a time when safety critical application is permitted to operate on the uncontrolled data processing device;
7.2	identifying, with the uncontrolled data processing device, a second current environment of the uncontrolled data processing device, the second current environment associated with a time after the safety critical application is permitted to operate on the uncontrolled data processing device;
7.3	comparing, with the uncontrolled data processing device, the second current environment with the first current environment; and
7.4	determining, with the uncontrolled data processing device, whether an environment change has occurred.

 Similarly, Claim 9: 

9	The method of claim 7, comprising:
9.1	determining, with the uncontrolled data processing device, whether the safety critical application functions properly on the uncontrolled data processing device after a determination that a change in environment occurred;
9.2	preventing, with the uncontrolled data processing device, certain features of the safety critical application from operating on the uncontrolled data processing device when determined that safety critical application does not function properly on the uncontrolled data processing device after the determination that the change in environment occurred; and
9.3	permitting, with the uncontrolled data processing device, the safety critical application to operate free of any restrictions on the uncontrolled data processing device when determined that safety critical application functions properly on the uncontrolled data processing device after the determination that the change in environment occurred.

Infringement of EP223

Abbott alleged that Dexcom's G5, G7 and D1 infringed claim 1 when used with a smartphone.  

I have already discussed the applicable law in  Patents and Registered Designs: Safestand Ltd v Weston Homes PLC and summarized it in relation to EP627.  I have also noted that the judge identified the skilled addressee and common general knowledge that applied to EP223.  

The first step was to construe Claim 1.  The judge said at [337] that that claim was for a method of hosting a safety-critical application on an uncontrolled data processing device ("UDPD") such as a mobile phone. It was common ground that the claim contemplated both an installation check and a functional check which could take place later.  If either check fails, the safety-critical features are disabled and the features that are not safety-critical are enabled.   That is a process called "selective enablement". The parties could not agree on the meaning of some of the wording of the claim and their respective contentions are set out between [341] and [368].  His lordship set out his conclusions between [368] and [378].  

At para [386] Abbott contended that the disputes on infringement principally turned on the following issues:

i) Whether the installation process of the G6 met the requirements of an "installation check" of integer 1.2(a).
ii) Whether the "time check" on the G6 device met the requirements of the "functional check" of integer 1.2 (a)l and
iii) Whether those checks in combination met the requirements of "preventing" in integer 1.2 (d).

His lordship considered the first issue between [387] and [393] and found that there was no installation check as pleaded though such a check was carried out by the phone's operating system whenever the app was launched.  That point had not been pleaded and the judge would not allow it to be raised at this late stage.  However, he found that the time check amounted to a functional check at [407]. The last issue depended on the construction of integer 1 (2) (d) of  Claim 1.  If his construction at [377] was right Dexcom would not infringe but if the alternative construction was correct it would.

The judge construed Claims 7 and 9 between [380] and [384] and considered between [415] and [420] whether either claim had been infringed.  He found that there had been no infringement.  

Counterclaim for Revocation of EP223

As I mentioned in the first paragraph, Dexcom counterclaimed for revocation of EP223 on the grounds of anticipation, obviousness and insufficiency.   I discussed the provisions governing revocation for lack of novelty and an inventive step when I wrote about Dexcom's counterclaim for revocation ohat f EP627.

Gejdos

Mr Justice Mellor construed claims 1, 7 and 9 when considering whether the patent had been infringed.  The prior art upon which Dexcom relied for its argument that the patent should be revoked for want of nove;lty was US patent 8,315,989 B2 for a System and method for database integrity checking ("Gejdos"),  According to its abstract, the invention was a method for checking the integrity of a database through a test of database integrity information provided in the database and integrity information provided external to the database.   The judge compared Gejdos to Claim 1 between para [422] and para [448] and found that Gejdos had all the integers of the claim.  He held that Gejdos anticipated Claim 1 of EP223 at para [449].

Lebel

Although the learned judge did not mention the Windsurfing/Pozzoli test he satisfied all its requirements. He identified the skilled addressee and common general knowledge with respect to EO223.  He even appears to have endorsed at [354] the claimant's formulation of the inventive concept as having two aspects:

"i) first, to ensure that an SCA (such as the operating software for a CGM reader) continues to operate correctly in an uncontrolled, dynamic environment (specifically a mobile phone in the proposed amended claim) by performing the necessary testing on the uncontrolled device itself, rather than such testing of the software and its correct functioning being carried out by the manufacturer prior to release; and
ii) second, where a check fails, a user may be allowed to continue to access non-safety critical functionality while safety critical features are disabled."

Dexcom's nearest prior art was  US patent number 9,533,096-B2 for a Microprocessor controlled ambulatory medical apparatus with hand held communication device ("Lebel") which is described in the following abstract:

"An implantable infusion pump possesses operational functionality that is, at least in part, controlled by software operating in two processor ICs which are configured to perform some different and some duplicate functions. The pump exchanges messages with an external device via telemetry. Each processor controls a different part of the drug infusion mechanism such that both processors must agree on the appropriateness of drug delivery for infusion to occur. Delivery accumulators are incremented and decremented with delivery requests and with deliveries made. When accumulated amounts reach or exceed, quantized deliverable amounts, infusion is made to occur. The accumulators are capable of being incremented by two or more independent types of delivery requests. Operational modes of the infusion device are changed automatically in view of various system errors that are trapped, various system alarm conditions that are detected, and when excess periods of time lapse between pump and external device interactions."

The judge's description of the invention appears between [451] and [457].  The parties' evidence and arguments on the last two steps of the Windsurfing/Pozzoli test are set out between [458] and [466] and his lordship's findings between [467] and [472].    Ar [471] the judge said:

"Overall, I am unable to accept that EP223 was obvious over Lebel for two principal reasons. First, because the route taken in the obviousness attack was not spelled out (either at all or clearly enough). Second, because the attack seemed to me to be essentially an argument that it was obvious (from the CGK) to replace the dedicated reader unit in Lebel with a UDPD."

Dexcom's Patents

EP159 is entitled "Systems and Methods for Providing Sensitive and Specific Alarms" and EP539 "Systems for Providing Sensitive and Specific Alarms". EP539 is a divisional of EP159 and the specifications of the two patents are almost identical.  Abbott characterized the inventive concept "as the provision of (at least) two hypoglycaemic alarms, one a current glucose alarm with a user settable threshold and the second a predictive alarm with a fixed threshold." It argued that the combination of alarms was no more than one common-sense way to implement glucose alarms of a kind that were well known to the skilled team from the products on the market.  Abbott admitted that it had infringed both patents but contended that they were invalid for want of novelty and an inventive step.

The Patents

His lordship summarized the parents in para [512] of his judgment.   His first 5 subparagraphs describe the invention:

"i) The patents set out to allow users to receive alerts or alarms indicative of glycaemic condition in a "more accurate and useful way" ([0010] - under Summary).
ii) The patents describe various components of a continuous analyte monitoring system from [0023] - [0074]. This includes visual displays showing glucose information in the form of a trend graph and a single numerical value ([0058] and figure 4A). The trend graph shows upper and lower boundaries representing a target range in which the user should maintain their glucose. The visual boundaries shown may be different from the boundaries that generate an alert ([0071]).
iii) A low alert screen is displayed when the user's glucose drops below a 'pre-set limit', shown as 55mg/dL ([0059] and figure 4B. Dr Palerm pointed out this replicates the 'Low Glucose Alarm' screen in the STS-7. A 'Going Low' alert is also described to indicate to the user that their blood glucose will soon be in the low range ([0063] and figure 4D).
iv) Predictive alerts may be provided when a severe hypoglycaemic event is predicted to occur in the near future, the example given being a blood glucose value of 55mg/dL. In such a case the processor is said to be programmed with a blood glucose value below which the user is considered to be hypoglycaemic ([0064] - [0065])."

Claim 1 of EP159

The claim broken down into integers was as follows:

1	a	A system (100) for processing data, the system comprising:
	b	a continuous analyte sensor (8) configured to be implanted within a body; and
	c	sensor electronics (12) configured to receive and process sensor data output by the sensor, the sensor electronics coupled to a processor module,
		the processor module configured to:
	d	apply a conversion function to sensor data, the conversion function taking into account temperature correction;
	e	evaluate sensor data (520) using a first function to determine whether a real time glucose value meets one or more first criteria, wherein the one or more first criteria comprises a first threshold that is configured to be settable;
	f	evaluate sensor data (530) using a second function to determine whether a real time glucose value meets one or more second criteria, wherein the one or more first criteria comprises a second threshold that is a fixed value;
	g	activate a hypoglycaemic indicator (540) if either the one or more first criteria or the one or more second criteria are met; and
	h	provide an output (550) based on the activated hypoglycaemic indicator.

Claim 1 of EP539

Dexcom sought to amend this claim.   The proposed amendments are underlined in italics.

1	a	A system (100) for processing data, the system comprising:
	b	a continuous analyte sensor (8) configured to be implanted within a body
	c	sensor electronics (12) configured to receive and process sensor data output by the sensor (8); and
	d	the sensor electronics (12) coupled to a processor module (214), the processor module (214) configured to:
	e	evaluate sensor data to determine whether a real time glucose value meets a first threshold (TV2) that is configured to be settable;
	f	evaluate sensor data to determine whether the real time glucose value meets a second threshold (TVp) in a predetermined time frame or time horizon;
	g	activate a hypoglycaemic indicator if either the first threshold (TV2) or the second threshold (TVp) are met; and
	h	provide an output based on the activated hypoglycaemic indicator, wherein the output comprises at least one of an audible, tactile or visual output, and wherein the output is differentiated and/or provides information selectively based on whether the hypoglycaemic indicator was activated based on the first threshold or whether the hypoglycaemic indicator was activated based on the second threshold;
		characterised in that
	i	the second threshold is a fixed predetermined threshold, wherein the second threshold is not settable,
	j	wherein the processor module is configured to visually display a glucose target range with a high target boundary and a low target boundary on a user interface, and wherein the low target boundary visually displayed is different from the first threshold
	k	and wherein the high target boundary visually displayed is different from a third threshold (TV1) associated with a hyperglycaemic indicator, such that the range between the first and third thresholds is wider than the range between the low and high target boundaries.

Application to Amend

Abbott objected to the application on the grounds that the proposed amendment to integer 1 (f) would extend the patent's protection and lack clarity and precision.  Dexcom argued that the proposal introduced a restriction whereas Abbott argued that it would be an extension.   The judge agreed with Abbott at [529].  Since s.14 (5) (b) of the Patents Act 1977 requires claims to be clear and concise Abbott objected to the complexity and prolixity of the proposed amendment.   The judge upheld the objection at [531].   The application to amend was refused.

Skilled Addresses

As the validity of both patents was attached for want of novelty and obviousness it was necessary to construe the claims as they would be understood by a skilled addressee.   The judge agreed with Abbott's expert at para [499] that both patents were addressed to a team led by an engineer who would consult with a systems engineering team, a team consisting of individuals concerned with developing effective interfacing between human beings and devices and a clinical education team which would include individuals with specific knowledge of diabetes and its management.,

CGK

Because it was also necessary to ascertain the skilled addressee's common general knowledge the judge decided the points in dispute between [500] and [511].

Case Law on Novelty

I have already discussed the statutory provisions above.   Dexcom referred the judge to para 4.4 of the Technical Board of Appeal's decision in T/396/89 UNION CARBIDE/high tear strength polymers [1992] EPOR 312:

"It may be easy, given a knowledge of a later invention, to select from the general teachings of a prior art document certain conditions, and apply them to an example in that document, so as to produce an end result having all the features of the later claim. However, success in so doing does not prove that the result was inevitable. All that it demonstrates is that, given knowledge of the later invention, the earlier teaching is capable of being adapted to give the same result. Such an adaptation cannot be used to attack the novelty of a later patent."

Dexcom also renunded him:

"i) that the prior art disclosure must 'plant the flag' - i.e. there must be a clear and unambiguous disclosure of all the features of the claim.
ii) of [the judge's] own observations in Commscope Technologies LLC v Solid Technologies Inc, [2022] EWHC 769 (Pat) at [189], which [he did] not repeat here.
iii) of the dicta of Meade J. in Fisher and Paykel Healthcare Ltd v Flexicare Medical Ltd, [2020] EWHC 3282 (Pat):

'150...The fact that something unmentioned is not expressly ruled out does not mean that it is disclosed, still less to the standard required for anticipation.'

Prior Art  - Novelty

Abbott contended that Dexcom's patents lacked novelty over US patent no 8,986,209-B2 for a Transcutaneous analyte sensor ("Brauker") and US patent no 9,339,238-B2 for  Systems and methods for processing sensor data ("Shariati"),

Brauker

The judge considered Brauker between [537] and [561].   He concluded at [561] that Brauker anticipated both EP519 and would have anticipated EP539 as proposed to be amended.

Shariati

His lordship considered Shariari between [562] and [572] and concluded that Shariati anticipated both of Dexcon's patents.

Applicable Principles - Inventive Step

I have already discussed the statutory framework and the Windsurfing/Pozzoli test which was not mentioned in terns and referred to only obliquely in para [576] in relation to paras [52] to [73] of the Supreme Court's judgment in  Actavis Group PTC EHF and others v ICOS Corporation and another [2019] UKSC 15, [2019] RPC 9, [2019] Bus LR 1318, [2020] 1 All ER 213, (2019) 167 BMLR 1.  Dexcom's problem was that its inventions were relatively simple and straightforward to implement once they had been described.  It argued that the unimaginative skilled team reading Shariati, Brauker, the Navigator Guide, or the STS-7 Guide in October 2012 simply would not have arrived at a CGM system with a user settable current hypoglycaemia alarm and a fixed-threshold predictive hypoglycaemia alarm.

Dexcom referred the judge to the following points from Actavis:

"i) First, that it is trite that the mere fact that the skilled addressee could, without technical difficulty, have taken an allegedly obvious step based on the prior art cannot render an invention obvious. It is not necessary to show that the skilled addressee would actually press ahead and physically implement the invention - as this may depend on a host of non-technical considerations - but the idea needs to be one which would occur to the uninventive skilled addressee as a technical solution. This is a multifactorial and fact-sensitive question: see e.g. Actavis v ICOS at [63].
ii) Thus, while it is well-established that the existence of one obvious route does not itself diminish the obviousness of other routes, the context in which the skilled addressee is working is important - see Actavis v ICOS at [69]:

'... the existence of alternative or multiple paths of research will often be an indicator that the invention contained in the claim or claims was not obvious. If the notional skilled person is faced with only one avenue of research, a 'one way street', it is more likely that the result of his or her research is obvious than if he or she were faced with a multiplicity of different avenues. But it is necessary to bear in mind the possibility that more than one avenue of research may be obvious. In Brugger v Medic-Aid Ltd (No 2) [1996] RPC 635, 661, Laddie J stated:

'[I]f a particular route is an obvious one to take or try, it is not rendered any less obvious from a technical point of view merely because there are a number, and perhaps a large number, of other obvious routes as well.'

Prior Art - Obviousness

Abbott relied on the STS-7 User Guide and its equivalent Navigator Guide

He concluded that Dexcom's patents were obvious over those Guides as well as over Brauker and Shariati.

Comment

Similar proceedings in respect of Abbott's patents have taken place in Germany and the judge referred to the judgment in those proceedings.   The German court reached much the same decision as Mr Justice Mellor though by a different route.   

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