Andrew Lykiardopoulos KC and Adrian Speck KC appeared for the Appellant “PMI” and Respondents “BAT”, respectively, in the appeal of the order of Marcus Smith J who had held that four patents of PMI for a “heat, not burn” smoking system were invalid for obviousness.
The appeal concerned the interpretation of a claim on which the validity of all patents rested, and the obviousness of a feature in the claim over a prior art.
The Court of Appeal dismissed PMI’s appeal. In particular, Marcus Smith J had been correct to find that the claim in issue covered both embodiments disclosed in the description of the patent rather than only one. Sir Christopher Floyd, writing the appeal judgment, stated that, normally, clear exclusionary language would be required to exclude an embodiment of the invention from the claim.