Michael Tappin QC and Henry Ward appeared for the defendant and patentee (“AMO”) in legal proceeding brought by the claimants (“Alcon”) to revoke two patents for ophthalmic surgical systems used for carrying out cataract surgery. Alcon’s validity attack was based on obviousness and insufficiency. AMO counterclaimed for infringement of the patents by Alcon’s LenSx laser surgery system.
The patents claimed a system comprising a laser and an imaging device, such as an Optical Coherence Tomography (“OCT”) device or confocal microscope, for carrying out a surgical procedure on the eye. Patent EP861 claimed the device for performing an anterior capsulotomy (i.e. cutting the anterior lens capsule) whilst patent EP528 claimed the device for cutting the lens cortex and nucleus into fragments. Alcon admitted infringement in the event that the patents were found to be valid. Its obviousness attack was based on two pieces of prior art: Freedman and Mühlhoff.
Mellor J held that both patents were obvious over Mühlhoff, but not Freedman as that attack involved hindsight. Given the disclosure of the patents was at a high level of generality, the CGK was important and heavily contested by the parties, with the judge favouring the evidence of Alcon’s experts. The Court considered the proper approach to the preparation of expert evidence in circumstances where the skilled person comprised a team where evidence was given by different members of the team.