Case No. IP-2019-000196

The law 63.No issue was raised regarding the law on the infringement of a patent claim, see Actavis Group PTC EHF v ICOS Corp [2019] UKSC 15. Claim 1 64.Professor Tehrani alleges that the Patent is infringed by acts done in relation to Hamilton’s Intellivent-ASV System. A product and process description (“PPD”) served by Hamilton explained how it works.65.There was a dispute as to whether Intellivent-ASV determines the required treatment in the case of every breath of the patient. This falls away since on the construction of integers 1C and 1G I have found, claim 1 of the Patent covers an apparatus which makes the determination both for every breath and also where the determination is less frequent. Intellivent-ASV satisfies that aspect of claim 1.66.There was a further argument relating to integer 1E. Hamilton argued that Intellivent-ASV does not determine PEEP by reference to a ratio of PEEP/FiO2 within a prescribed range, but by reference to target values for each variable.67.The PPD explains that the output signals for PEEP and FiO2 are determined by reference to values which can be graphically represented. Figure 6 of the PPD shows the circumstances in which the system controller determines that an increase in treatment level is required. Figure 7 shows graphically the same thing for a decrease in treatment level: 68.In each case the thick black line marks the target values for PEEP and FiO2. Where treatment is to be increased and the patient’s values are to the left of the thick line, PEEP is increased. If the patient’s oxygen level is below the line, FiO2 is increased. When treatment is to be decreased, PEEP will be decreased if the patient’s value lies to the right of the thick line, FiO2 will be decreased if the oxygen value is above the line. Unlike the straight line of Figure 6, the target line of Figure 7 is closer to a dog-leg shape.69.Professor Tehrani argued that the straight line of Figure 6 represents a fixed PEEP/ FiO2 ratio. Therefore during an increase in therapy (though not during a decrease) Intellivent-ASV is necessarily moving the patient towards and thereafter seeking to maintain the patient within that fixed ratio.70.Hamilton said that any straight-line graph can represent a fixed ratio between two variables only if the line passes through the origin. That is true, although one cannot tell from Figure 6 whether the line would pass through the origin. Hamilton said not – it would pass close to, but not through the origin. Looking at the three ratios spelt out: 5/21, 7/30 and 24/100, that appears to be right. The line nearly but not exactly represents a fixed value for PEEP/FiO2.71.Integer 1E requires that PEEP/FiO2 should be kept within a prescribed range. Hamilton suggested that the skilled person would expect that range to be graphically represented something like this: 72.The two lines, each passing through the origin, represent a PEEP/FiO2 ratio. In this instance one of the ratios is 0.1 and the other 0.24. The area between the two lines is the range between those two ratios – the prescribed range if 0.1 and 0.24 were the prescribed limits.73.I agree that this is probably what would first occur to the skilled person who has read the Patent and is considering the meaning of the words of integer IE. But the words are broad – covering any sort of range including one of such narrow bandwidth that it comes close to being represented by a single line. Figure 6 of Hamilton’s PPD represents a range of sorts, of narrow bandwidth. In my view, such is the broad wording of integer 1E that it is satisfied by the relationship between PEEP and FiO2 shown in Figure 6.74.When Intellivent-ASV is being used to increase the treatment level of the patient, integer 1E is satisfied. Therefore when Intellivent-ASV is being used to increase treatment, claim 1 is infringed on a normal construction of the claim. Claim 45 75.Integers 45B, 45F and in particular 45H require the apparatus to use data indicating the oxygen level of the patient, among other data, to determine a required FiO2 and a required optimal breathing frequency, a required ventilation and a required I:E.76.The PPD indicates that Intellivent-ASV does not use the oxygen level of the patient as part of the system. Professor Rees endorsed this.77.Professor Tehrani’s counsel told me that his instructions were that PEEP is ultimately determined from SpO2 data and therefore provides a means for indirect measurement of oxygen levels. This seemed to be a late developed argument. I am not satisfied that it was established on the evidence that PEEP is necessarily related to oxygen levels and I can see no reason why it should be. It was not put to Professor Rees. Had it been, and had he been taken through the stages of the suggested indirect relationship and accepted the point, I would have taken the point to be a good one. As it is, I reject it.78.Claim 45 is not infringed on a normal construction of the claim. An equivalent to the invention of claim 45 79.Professor Tehrani’s skeleton argument said that the question of infringement on the basis of equivalence would be returned to after cross-examination. It was not pursued in counsel’s closing argument.