The substance of Environmental Health Systems Limited ("EDS") v Synergy Health plc and Another ("Synergy") & Gravits (International) Limited & Others ("Gravitas")  EWHC 1306 (IPEC) concerns obviousness of EDS's European Patent No 2 393 989 for a method of manufacturing barrage units. However, the case highlights a tension that can arise between the English approach to the person skilled in the art and the practical effect of the field of expertise chosen by the parties for their experts.
|Not everyone is so concerned|
about incontinence: there are those
who prefer to go with the flow ...
In the event, Judge Hacon found that by the start of 2009 the skilled person would consider absorbent pads to be at least worth trying as fillers for a barrage unit, with a reasonable expectation of success given the disclosure of sandless sandbags. Hence, there was no inventive step in the manufacture of barrage units as claimed in the patent.
|But will the expert's evidence hold water?|
|Look, no pads!|
Given that this problem can arise under the law, Judge Hacon emphasised the practice point that could have avoided the dilemma at trial:
"by the time of the CMC [case management conference] the parties' contentions in this regard (and all others) must be clear so that the court is in a position to rule on whether expert evidence may be given and to identify the technical field or fields to which that evidence will relate. The parties can then select their expert witnesses from that field or those fields. From the CMC onwards these matters should be fixed for the purposes of the trial."In other words the issue could have been headed off at the CMC. In fact, a year on from the implementation of the Jackson reforms, the case gives cause for reflection that, further to the amendments made to CPR 35.4 in April 2013, parties are not merely required to identify the field with which the expert evidence is concerned at the CMC now, but also the issues that evidence will address. The more general practice point is therefore that consideration of expert evidence cannot begin too early in a case.
Pee Power here
Huge thanks are due to Paul England (Taylor Wessing LLP) for leaping into instant action in order to draft this word-perfect Katnote in less time than it takes to, well never mind ...