The present appeal was launched by the Patentees, Angiotech and the University of British Columbia, against the decision of Pumfrey J  EWHC 260 (Pat), which held patent EP (UK) 0706376 invalid for obviousness. The patent provided monopoly for a vascular stent coated with a composition of an anti-angiogenic factor and a polymeric carrier. The dispute was centred on a much more limited claim focussing on taxol coated stents, as it was accepted by the parties that if this limited claim fell, the wider claims would fall too.
Leading through Jacob LJ, the Court of Appeal upheld the first instance judgment that, at the time of the priority date of the patent, i.e. 19 July 1993, it was common general knowledge that drug eluting stents constituted a way forward to treat the gradual closure of blood vessels. The prior art mentions the use of 'anti-proliferative' or anti-angiogenic (inhibiting the growth of blood vessels) agents on such stents. The patentees mentioned the use of few of these agents along with taxol in their patent. The main issue was whether or not the inclusion of taxol (an inventive concept) would entitle the patentee to claim a monopoly for the stent.
The response of the Court of Appeal was a categorical 'no'. The Court of Appeal held that the first instance judge had not made an error of principle and would not overturn his finding based on the evidence (and thus rejected the appeal). In any event, Jacob J did not believe the patent disclosed a surprising effect arising from the use of taxol. This contrasts with a ruling in the District Court of the Hague between Angiotech and Sahajanand Medical Technologies in which the Dutch court held that the patent did tech a surprising effect. This is therefore another example of different interpretations of the same judgment being arrived at in different jurisdictions, although it should be noted that the argument that taxol provided a surprising effect was not run at first instance in the UK, and so no evidence in support of this was submitted. Nevertheless, this highlights the need to make a careful and informed decision as to the forum in which to bring proceedings when patent infringement is occurring in multiple European jurisdictions.