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Journal of Intellectual Property Law & Practice Advance Access published online on March 2, 2006
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpl019
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© The Authors (2006). Published by Oxford University Press. All rights reserved.

Practice point

Patent construction after Amgen: are patent claims construed more widely or narrowly than previously?

Brian Whitehead 1, Stuart Jackson 2, and Richard Kempner 3
1 Dr Brian Whitehead, solicitor at Addleshaw Goddard
2 Stuart Jackson, solicitor and Director of Patent Litigation at Addleshaw Goddard
3 Richard Kempner, Partner and National Head of Intellectual Property at Addleshaw Goddard


  Abstract

Legal context. This article considers the UK Courts' approach to patent construction since the House of Lords' decision in Kirin-Amgen Inc v Hoechst Marion Roussel Limited, which was handed down in October 2004, and seeks to examine whether the UK Courts' construction of patents is wider or narrower than previously.

Key points. The available data appear to suggest that there is little difference in outcome, whether the old Improver test is applied or the new Kirin-Amgen test; of more significance remains the nature of the wording of the patent claims themselves, and the correct identification by the trial judge of the invention underlying the patent.

Practical significance. By eschewing a literal approach and refining the test used in order to ensure both compliance with the EPC and consistency with courts in other European countries, the UK Courts continue to provide an attractive forum for resolution of patent disputes.


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