This case concerning silverised wound dressings is not to be confused with a related case between the same parties, noted by the IPKat here. This latter case relates to a similar technology, but without the silver. Readers interested in that case may wish to know that the decision was upheld on appeal (see here), and that there was a further decision, principally about costs (see here).
today's decision addresses.
Appeal to the Supreme Court
The Court of Appeal has refused leave for Smith & Nephew to appeal to the Supreme Court, because it considered that there is no significant point of general public importance at stake, since it has done no more than apply the established principles of claim construction from Kirin Amgen (Kirin Amgen Inc v Hoechst Marion Roussel Ltd  UKHL 46,  RPC 9) to the case before it. However, Smith & Nephew have stated that they will seek leave to appeal from the Supreme Court, and the Court of Appeal has recognised that the Supreme Court may take a different view.
Proceedings at the EPO
|Merpel & nephew|
Both sides claim that they will eventually prevail in the opposition. They have also offered different views of the likely timescale for the proceedings to be finally concluded.
Stay of injunction and delivery up
Convatec has sought an injunction to restrain further infringement by Smith & Nephew and an order for delivery up of infringing product. Whilst accepting that Convatec is in principle entitled to this relief, concerning the timing, because of the possibility of appeal to the Supreme Court, and the possibility that the EPO Board of Appeal might uphold the revocation of the patent, the Court of Appeal has decided:
We have therefore come to the conclusion that the injunction should be stayed pending the decision of the Supreme Court in relation to the application for permission to appeal or, if later, the decision of the TBA. For like reasons we also grant a stay of the order for delivery up or destruction. We grant these stays on the basis that Smith & Nephew undertake to continue to press for expedition of the TBA hearing and to prosecute their application for permission to appeal to the Supreme Court with all due diligence. We would make it clear that, subject to any further stay which the Supreme Court may grant, we do not envisage this stay extending beyond April 2016. We therefore give the parties liberty to apply to a single judge of the Patents Court of the High Court should that appear likely.Costs