Case No. IP-2019-000196

”105.At no point did Professor Tehrani explain her reasoning any more clearly than that and I do not find it easy to follow. It appears to be another way of saying, as Professor Tehrani emphasised elsewhere in her evidence, that trial-and-error and continuous closed loop systems cannot be combined, an assertion which I have not accepted above.106.Moreover, in this instance, if there were a difficulty at the priority date in using known means to determine I:E by reference to (a) measured oxygen level, (b) measured carbon dioxide level and (c) respiratory elastance and airway resistance in combination with a system such a Waisel, so as to perform the invention claimed in claim 45, the Patent does not explain how that difficulty is to be overcome. There is an apparent squeeze with insufficiency.107.Taking all this into account, I conclude that Professor Tehrani’s reasoning in relation to Waisel and claim 45 was indeed a repeat of her unfounded assertion that there is a distinction between trial-and-error systems and continuous closed-loop systems and the two can never be combined.108.I accept Professor Rees’ evidence on this aspect of the case and I find that claim 45 is obvious over Waisel.