Secondary evidence
125.Coloplast laid great emphasis on long felt want and commercial success. Taking first the question of long-felt want, it is important that the want must be for the invention as claimed, the invention having been made possible by the inventive concept. In the present case, as Dr Baran asserted, the alleged inventive concept was the idea (no more) of a water-stored catheter, one embodiment of which was a ready-wetted catheter. He then added that the inventive concept also included the idea of thermoplastic film comprising aluminium to be used for packaging the catheter. The latter adds nothing since such material was shown on the evidence to be a known and obvious material to use if, as would be the case, it was necessary to prevent evaporation of the water. 126.I have found that the key idea of a ready-wetted catheter was part of the common general knowledge. There can have been no long-felt want for an invention made possible by only that concept. 127.The lack of a water-stored catheter on the market until the development of the SpeediCath could be explained by reasons other than a water-stored catheter being outside the obvious contemplation of the skilled team. The most likely candidate in the present case was the inability on the part of the manufacturers to come up with a commercially viable product until Coloplast managed it. But the fact that the inventive concept was known at the priority date is by itself fatal to Coloplast’s argument of longfelt want. 128.In the absence of a long-felt want, Coloplast’s evidence of commercial success can add nothing to its case on inventive step. 129.Claim 1 lacks inventive step over Rødsten.
Israelsson 130.The difference between Israelsson and the invention of the Patent is that although Israelsson discloses a kit with water, it discloses neither a ready-wetted catheter nor a user-activated catheter, the latter defined above to exclude the ampoule embodiment. In Israelsson water is stored with the catheter but in a separate sachet. 131.Mr Torstensen’s evidence was that if the skilled team had the idea of a ready-wetted catheter, the invention of claim 1 would be obvious over Israelsson. It would be obvious to store the water with the catheter rather than in a separate sachet. I did not understand Mr Baran to challenge this. The main distinction relied on by Ms Israelsson, namely that the invention of the Patent required the catheter and the water to be stored in the same cavity, ceases to be a meaningful distinction if the idea of a ready-wetted catheter is part of the common general knowledge. 132.Thus, according to both experts it was obvious to package a catheter containing sterile water with gas impermeable packaging such as a thermoplastic film containing aluminium. 133.Claim 1 lacks inventive step over Israelsson.
Shibatani 134.Shibatani is a Japanese patent which discloses a drug-delivery device using a catheter. The catheter is an indwelling catheter with a hydrophilic layer. The catheter is stored in contact with the drug in a sterile casing. Two embodiments are described. In both it is stated that the hydrophilic resin coating layer of the catheter is held in the drug for some days and so that the catheter could be used immediately to administer the drug. The specification states that the catheter has shown best results when applied as a urinary catheter. 135.Coloplast’s primary position was that Shibatani would have been of no interest to the skilled team because it concerned an indwelling catheter used for a purpose quite different from that of an intermittent urinary catheter. I do not accept that. I have found that claim 1 covers an indwelling urinary catheter. Therefore the skilled team would include a developer interested in improvements to indwelling catheters. Even if the skilled team did not contain such a developer and were interested only in intermittent catheters, to the extent that the structure and function of the two types of catheter overlap, new information about indwelling catheters in the area of overlap would have been of interest to a skilled developer of intermittent catheters. It would have been perverse to ignore such information. This would include a means of providing a lowfriction catheter with the minimum of fuss from the user’s point of view. 136.Given my finding that that the idea of a ready-wetted catheter was part of the common general knowledge and that it was common ground that the LoFric and EasiCath products were also part of the common general knowledge, the argument on inventive step in respect of Shibatani becomes somewhat artificial. However, with that common general knowledge, claim 1 is also obvious over Shibatani.
Claims 3 and 5 137.Little was said about claims 3 and 5. It is enough for me to consider them in relation to Rødsten. The further features of claim 3 over claim 1 were that (a) the catheter as a whole is made of a gas impermeable material and (b) the package is formed from two sheets of the material connected by a gas impermeable joint. Mr Torstensen said that Rødsten discloses the first of these and that the second is inevitable if aluminium-plastic laminates are used to make the package. He was not challenged on this. Ms Israelsson said nothing in her report about claim 3 being inventive over claim 1. 138. Coloplast did not allege that there was anything separately inventive in claim 5 139. Claims 3 and 5 lack inventive step over Rødsten.