MMI Research Ltd v Cellxion Ltd  EWCA Civ 7 is a rare appeal that turned entirely on the
facts, and yet it is not necessary to understand the invention to understand the appeal, except to
say that it is embodied in a machine.
There were two issues on appeal. The more straightforward, and in this Kat’s view, the more interesting point, was obviousness over an article referred to as “Fox.” Floyd J had held that the invention was not obvious over Fox. CellXion appealed on the basis that this finding was contrary to the evidence. In particular, as the Court of Appeal explained:
The Court of Appeal carefully reviewed the evidence and ultimately accepted this argument. It therefore held the invention to be obvious, and CellXion’s appeal succeeded on that basis.
This Kat does not see any error of principle here. The Court of Appeal simply held that Floyd J at trial had overlooked a key concession made by the expert witness for MMI. But Biogen never said that an appeal on obviousness can succeed only if the trial judge has made an error of principle. It said that the trial judge’s decision on obviousness “should be treated with appropriate respect,” and “[w]here the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation.” The standard of review applied by the Court of Appeal is consistent with this statement of the law, even if there was no point of principle.
|What you may find in a brown envelope|
The dubious provenance of the two manuals proved to be too much of a hurdle for CellXion to overcome, and in the judgment on the remitted issues  EWHC 426 (Pat), Floyd J was not persuaded that the manuals had been supplied to anyone before the priority date. On appeal CellXion argued that even if the manuals were not provided before the priority date, the manuals were evidence going to show that a user of the GA-900 machine would have been able to figure from inspection of the machine - not from the manuals - how the GA-900 worked. In other words, the argument was that the manuals showed that Floyd J was wrong in his original conclusion that sale of the machines would not constitute enabling disclosure. The Court of Appeal dismissed this ground of appeal with the observation that the order remitting the matter to Floyd J expressly prohibited a reopening of this issue