Wednesday 30 November 2022
By Appellants Notice filed on 2 November 2021, the appellant (Defendant & Part 20 Claimant below “PMI”) appeal paragraphs 1-8 and 12 of the Order of Mr Justice Marcus Smith dated 12 October 2021 by which he declared that European Patent Nos EP (UK) 3,248, 483-6 are invalid, and ordered that they be revoked, that PMI’s counterclaim for infringement of the Patents be dismissed, that PMI’s application to amend be dismissed and that PMI pay costs.
Background: Nicoventures Trading Limited (Claimant/1st Part 20 Defendant below), sought declarations of invalidity (and orders that they be revoked, if invalid) in relation to European Patent Nos EP (UK) 3,248, 483-6. PMI was proprietor of the patents, and counterclaimed for infringement against Nicoventures Trading Limited, and a third party, British American Tobacco (Investments) Limited (BAT). The products said to infringe the Patents are referred to herein as the glo device in heat-not-burn (HNB) products, which are an alternative to conventional cigarettes. The judge below referred to the 1st and 2nd Part 20 Defendants as without differentiation as British American. The relevant priority date for the patents is 29 October 2009. The Judge found the patents invalid as all lack an inventive step because they are obvious having regard to the matter forming the state of the art taken together with the common general knowledge at the priority date.