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Monday, 6 March 2006

STUCK IN THE MDU; PARTIES IN COURT - WITH ARTERIAL BALLOONS


Where data mismanagement is not material

The IPKat has just spotted a fresh decision of Mr Justice Rimer from last Friday, 3 March, in Johnson v Medical Defence Union Ltd [2006] EWHC 321 (Ch), brought to you courtesy of BAILII.

Johnson, a consultant orthopaedic surgeon, was a member of the Medical Defence Union till March 2002, when his membership was terminated as a result of a resolution by the Union not to renew his membership when it next expired. Once his membership of the Union was terminated, Johnson's professional indemnity cover automatically terminated. Since Johnson was given no warning of possible termination of his membership and had never been the subject of any claim for professional negligence, he wanted to know why the resolution was made, but no reason was offered. Alleging that the Union had unfairly processed his personal data, Johnson sued for damages the Data Protection Act 1998, s.13, claiming that the termination of his membership had caused damage to his professional reputation. According to the Union, the fact that Johnson had been the subject of a number of incidents and allegations over a period of some ten years had resulted in a risk assessment review being carried out on Johnson which generated a score at a level which justified consideration of his future membership by a committee of senior clinicians: it was the decision of that committee to terminate his membership.

In these proceedings Rimer J had to rule on whether the risk review involved any processing of Johnson's personal data and, if it had, whether the processing was unfair.

Left: the IPKat and his friends, wearing their nifty anti-avian flu costumes, look for someone to vaccinate with their fancy new syringes ....

Rimer J dismissed Johnson's claim. In his view. the fairness of the processing of a member’s personal data had to be considered in the context of the contractual relationship between the Union and its members. In that context the Union was entitled to decided what its policy was and could then execute that policy, so long as it ensured that any processing of members’ data in line with that policy was carried out fairly. The court had no power to hold that the Union's risk assessment policy was unfair (this being a matter for the Union's members, presumably).

On the facts the Union had indeed mis-processed some of the information it held on Johnson. However, this added up to just two of the 17 files it held on him. On the evidence the Union would have reached exactly the same decision even if they hadn't mis-handled the data.

The IPKat reminds readers that the fact that Data Protection legislation exists throughout Europe does not mean that a person whose personal information is held by others has an absolute and mandatory right to control what they do with it. The law is at its most effective when it addresses issues such as wrongful access or wrongful seepage - not wrongful appreciation.

Earlier litigation between Johnson and the Medical Defence Union here and here.
The best medicine here and here.
The best defence here and here.


Parties in court - with arterial balloons

The decision of Mr Justice Pumfrey in Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and another [2006] EWHC 260 (Pat), 24 February, missed the IPKat's radar whiskers when it came out (although related Dutch litigation involving the same disputants appeared on this blog early last month).

Angiotech owned a patent for a stent that was used in coronary angioplasty. After a stent was inserted into a diseased artery in the course of angioplasty, a balloon could then be inflated to open up the artery, keeping the artery open. The patent claimed a stent coated with a polymer loaded with the drug taxol, which inhibited the development of tissue that might result in the gradual closure of the artery (restenosis). Angiotech licensed the patent to Boston Scientific, who made stents. Conor, a keen rival of Boston Scientific, then sought to revoke the patent, claiming that it was obvious in the light of the prior art.

Pumfrey J allowed the application and revoked the patent. The mere fact that no-one had used stents like this before might make them new, but it didn't make them non-obvious: you just can't say that everything obvious at the priority date should have been done or contemplated either then or at any time subsequently. Given the state of the art, it was obvious to anyone who needed a stent of this nature that he would have to use taxol. Accordingly the patent was invalid for obviousness.

The IPKat's friend Luke Dylan Ueda-Sarson picks up a bit in the judgment where Pumfrey J says:

"61. ...Put another way, is the patent vulnerable only if it can be shown that the skilled person would have an expectation of success sufficient to induce him to incorporate taxol in a drug-eluting stent, or is it sufficient that without any expectation of success he would test or screen taxol?

62. In my judgment, this question is to be answered by assessing the contribution to the art disclosed by the specification. For the reasons that I have given above, I am satisfied that the disclosure of the specification is that taxol may be incorporated in a stent. It does not suggest that such a stent would be safe or that such a stent would work to prevent restenosis...

89. Balancing the foregoing factors is not straightforward. In my judgment, the key to the solution of the problem lies in the correct identification of the appropriate approach to the test for obviousness. For the reasons that I have endeavoured to explain, I consider that the appropriate test is whether it was obvious to test taxol at all. The specification giving no indication of any likelihood of success, and giving no indication as to toxicity, side-effects or indeed efficacy, it is wrong in principle to permit such considerations to weigh against the obviousness of testing taxol. So I conclude that the claims were obvious".
Luke comments on this:
"In essence, this seems to be saying to me that the test for obviousness in this case depended on what the patentee had written in the body of the specification (its "contribution to the art"). Isn't the normal test for obviousness comparing what is claimed with what the prior art teaches and what the person skilled in the art would know WITHOUT reference to the specification in question? Is there something I am missing here?".
Would any IPKat readers care to comment? Merpel adds, there seems to be a new way of dealing with inventive step in the UK every time any court gives a ruling. Can we please start afresh with a clean set of guidelines and a promise that we never need go back to and through all the old cases again?

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