Advanced Bionics AG & Anr v Med-El Elektromedizinische Geräte Gmbh [2022] EWHC 1345 (Pat)

1 June 2022

Andrew Lykiardopoulos QC appeared as lead counsel for the claimants (“Advanced Bionics”) in proceedings brought against the defendant (“Med-El”) to revoke a patent relating to MRI-safe disk magnets and/or a declaration that Advanced Bionics’ implant device did not infringe.  Med-El counterclaimed for infringement, with the proceedings conducted through the Shorter Trials Scheme. The trial in the UK had been expedited at the request of Advanced Bionics, in light of infringement proceedings brought in Germany by Med-El (Judgment of Mellor J at [2021] EWHC 2415).

The patent related to cochlear implants and the problems a patient experiences when undergoing an MRI scan.  Specifically, interactions occur between the implant magnet and the external magnetic field required for the MRI, causing torque which can lead to displacement of the implant magnet and tissue damage.  The patent claimed a new system of cochlear implant which included a rotating implant magnet with a magnetic dipole parallel to the plane of the implant coil housing.  Advanced Bionics claimed this was obvious over a piece of prior art invented by the same inventor as was named on the patent (“Zimmerling”) and that the claims were insufficient or not infringed

Mr Campbell Forsyth, sitting as a Deputy High Court judge, held that the patent was obvious.  Following a report from the Comptroller, the judge allowed Med-El to amend the patent claims, but held that they did not cure the invalidity.  On a purposive construction, Advanced Bionics’ HiRes Ultra 3D implant fell within the amended claims of the patent.  Similarly, on the judge’s construction of the claims, the sufficiency argument failed.  However, the patent was found to be obvious over Zimmerling because, once the skilled person selected a commonly known disc-shaped magnet implant, Zimmerling and the common general knowledge taught that it was obvious to change the magnetization to be across the axis of rotation so as to allow rotation.  The resulting arrangement fell within the claims.

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