Adrian Speck QC, Mark Chacksfield QC and Michael Conway appeared for Conversant in its appeal against a finding that a European patent for a mobile telephony feature was invalid for added matter. The invention in the patent related to autonomous transmission in high speed uplink packet access in the context of the Universal Mobile Telecommunications Standard.
The finding of added matter that was the subject of the appeal concerned Conversant’s proposed unconditional amendment to claim 1 of the Patent. In the course of its arguments on appeal, Conversant relied on a construction of the claim that the Respondents (Huawei & ZTE) contended had not been advanced at first instance. In the leading judgment Floyd LJ held that Conversant’s construction had not been properly ventilated at trial and, had it been, would have necessitated new expert evidence, which was not available to an appellate court. He further held that the new construction would not have avoided adding matter. The appeal was dismissed.