Salts Healthcare Limited v Pelican Healthcare Limited

For infringement by a normal, purposive interpretation, a claimed weld portion must itself extend away from the actual periphery of the appliance and point downwardly towards its bottom. A change in direction of the peripheral weld, or a weld portion at the bottom of the bag, does not satisfy that requirement where the claim requires a downwardly extending structure.

For infringement by equivalents, the variant must achieve substantially the same result in substantially the same way, the skilled reader must regard that way as obvious, and strict compliance must not have been intended as essential. Where the patent deliberately claims particular structures, a broader result-based variant may fall outside the claims.

Salts Healthcare Limited alleged that Pelican Healthcare Limited’s ModaVi closed and drainable ostomy bags infringed claims 5, 8 and 20 of a patent for an ostomy appliance, both on a normal construction and under the doctrine of equivalents.

Pelican denied infringement and challenged validity on novelty, inventive step and added matter, relying on four prior publications. Salts conditionally sought amendments to claims 5 and 8. The central issues were the construction and application of the claimed weld portions, the validity of the claims, and the allowability of the proposed amendment.

1. Construction and infringement. The claimed weld portion had to be a weld connecting the two walls, either forming part of or additional to the peripheral connection. The requirement that it extend away from the periphery referred to the actual periphery of the appliance, not a hypothetical continuation. “Downwardly towards the bottom” required the weld portion itself to point downwards. The ModaVi waist and lobes did not satisfy that requirement on a normal, purposive construction, so claims 5, 8 and 20 were not infringed.
2. Equivalents. Applying Actavis v Lilly [2017] UKSC 48, and the explanation in Icescape Ltd v Ice-World International BV [2019] FSR 5, the waist did not achieve substantially the same result as the inventive concept. The lobes did, and the bag as a whole satisfied the first two questions. However, the third question was answered yes: the patent deliberately claimed particular weld structures, although the result could have been claimed more broadly. There was therefore no infringement by equivalents.
3. Validity. Applying the Pozzoli test in Pozzoli SPA v BDMO SA [2007] EWCA Civ 588, Grum-Schwensen anticipated claim 8. The inventive-step attacks on claims 5 and 20 failed. The other prior publications did not make the claimed arrangement obvious because they addressed materially different problems or did not disclose weld portions additional to the periphery arranged to minimise bulging, sagging or pulling at the wafer.
4. Added matter and amendment. Applying the comparison required by European Central Bank v Document Security Systems [2008] EWCA Civ 192, approving the approach in Bonzel v Intervention Ltd [1991] RPC 553, claim 5 did not add matter. Claim 8 could be amended to a closed colostomy appliance. The amendment did not affect the infringement conclusion.
5. The ModaVi bag did not infringe claims 5, 8 or 20. Claim 8 lacked novelty, the inventive-step attacks failed, the amendment to claim 8 was allowed, and the added-matter attack on claim 5 failed.

First-instance judgment following a four-day trial in the Patents Court. No prior appellate decision is stated in the judgment.