Vernacare in the UK Court of Appeal: Invention obvious even if disclosure does not cover all benefits of invention

The Court of Appeal recently overturned the Intellectual Property Enterprise Court’s findings on validity and infringement in one of the patents involved in Vernacare v Moulded Fibre Products. Key to its decision was a judgment that had not been raised in the IPEC, Hallen v Brabantia, the leading case on ‘bonus’ effects of inventions.

At first instance, the IPEC’s finding that the defendant (“MFP”) did not infringe by equivalence because the patent would have been invalid if it had that scope (the ‘Formstein’ defence) was a notable feature which remains unaffected as it was not appealed.

Background

The case concerned disposable washbowls for use in healthcare settings. These washbowls are made from paper pulp, mixed with other ingredients including “sizing agents” (additives which improve qualities such as waterproofing) and biocides, moulded into shape.

Two of Vernacare’s patents were considered at first instance. The first concerned the shape of the washbowl, with the patent found valid but not infringed by the defendant’s washbowl (this part of the judgment was not appealed).

The second, patent GB 24 39 947 (the “947 Patent”) covered the addition of fluorocarbons among the sizing agents to provide protection from detergents which might otherwise degrade the washbowl during use. The IPEC found this patent valid and infringed. The appeal related to the judge’s findings that claims 1 and 9 of the 947 Patent were valid.

Hallen enters play

MFP argued that the IPEC judge had incorrectly defined the inventive concept by introducing an illegitimate purpose-based…