Protomed Ltd v Medication Systems Ltd & Ors

For patent infringement, the court must give effect to the language of the claim. A limitation cannot be ignored because it appears unnecessary to the invention’s practical purpose. Where a claim requires both compartments and pots received within them, an article containing holes in a flat tray may not satisfy that limitation merely because the holes have physical boundaries. An interim injunction requires a good arguable case on infringement before the court considers the balance of convenience. If construction is straightforward and the material shows no arguable infringement, the application fails at that first stage.

The claimant sought an interim injunction against two defendants in patent infringement proceedings concerning systems for packaging individual doses of medication. Passing off and trade mark infringement were not pursued on the application.

The defendants accepted that their product contained pots, a tray and sealing features, but disputed that it contained individual spaced compartments with pots individually removably received within them. The central issues were the construction of claim 1, whether the defendants’ holes could be compartments, and, if infringement was arguable, the balance of convenience.

1. Claim construction. Claim 1 required both compartments and separate pots received within those compartments. The wording could not be treated as merely describing the ultimate function of the assembled product. A limitation could not be ignored because it appeared to make no difference to the inventive concept. The approach in STEP v Emerson [1993] RPC 513 supported giving effect to the express limitation.
2. The defendants’ product had pots suspended in holes cut into a flat tray. In the context of the claim, those holes were not compartments. The claim and specification indicated a compartment with substantial three-dimensional characteristics, including sides and a base, separate from the pot. Dictionary definitions could not displace the meaning derived from the patent’s context.
3. The construction issue was sufficiently straightforward to be resolved on the evidence available at the interim stage. The claimant therefore had no good arguable case on infringement. It failed the first stage of the test in American Cyanamid and was not entitled to an interim injunction.
4. It was nevertheless appropriate to consider the balance of convenience briefly. Had infringement been arguable, that balance would have favoured an injunction. The claimant’s potential losses, including substantial and difficult-to-quantify losses if the defendants’ product proved infringing, were significant. The claimant could meet any cross-undertaking in damages, whereas the defendants were not good for substantial damages.
5. The application for an interim injunction was dismissed because there was no good arguable case on infringement.

Not stated in the judgment.