IP-2024-000024 - [2025] EWHC 492 (IPEC)

One point of law arose. It is well established that where the cited prior art expressly refers to other material which may be consulted by the reader, that further material becomes in principle available to supplement the cited disclosure when considering inventive step, see Pfizer Ltd’s Patent [2001] FSR 16, at [66]. However, there is no unqualified assumption that the information contained in a cross-referred document can always be taken to supplement the cited disclosure. As Laddie J said in the paragraph of Pfizer just referred to:

Where the cited prior art refers to more than one document which can be consulted by the reader and the party relying on the prior art alleges that just one such document would have been considered, there is an evidential burden on that party to show that the skilled person at the priority date (a) would have consulted that document as opposed to any of the others referred to in the cited prior art and (b) would have selected particular information from within the supplementary disclosure if selection is alleged.