Andrew Lykiardopoulos QC appeared alongside Michael Conway and Tim Bamford of Collyer Bristow, for the Claimant (“Regen”), in this action concerning Regen’s patent for the preparation of platelet rich blood plasma (PRP).
Regen claimed that that the patent was infringed by the Defendant’s PRP kits. The Defendants (“Estar”) denied infringement and counterclaimed for revocation, alleging that the patent was anticipated by sales of Regen’s own PRP kits, as well as prior art relating to blood preparation kits for in-vitro diagnostics. Estar also said that the patent was obvious over the prior use and cited prior art and was insufficient.
HHJ Hacon found that Regen’s PRP kits alone were not novelty-destroying, but that the Patent lacked novelty over a demonstration of the kits which had used the patented method. He also found that the kits rendered the patent obvious.
In an interesting application of the doctrine of equivalents as established in Actavis v Eli Lilly ([2017] UKSC 48, the judge went on to find that, had the Patent been valid, it would have been infringed by the Defendant’s PRP kits. Estar submitted that their kits did not fall within the claims since the kits did not use a polyester-based gel, as required by the claimed method, and they used a buffered sodium citrate solution of 0.136M rather than the required 0.10M. Despite these differences, the judge held that Estar’s kits were an equivalent of the claimed method. In particular, it was held that there was no reason for the doctrine of equivalence not to apply where the claims in question were numerical.