Journal Article

Patent construction after <i>Amgen</i>: are patent claims construed more widely or narrowly than previously?

Brian Whitehead, Stuart Jackson and Richard Kempner

in Journal of Intellectual Property Law & Practice

Volume 1, issue 5, pages 332-337
Published in print April 2006 | ISSN: 1747-1532
Published online March 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl019
Patent construction after Amgen: are patent claims construed more widely or narrowly than previously?

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Legal context. This article considers the UK Courts' approach to patent construction since the House of Lords' decision in Kirin-Amgen Inc v Hoechst Marion Roussel Limited, which was handed down in October 2004, and seeks to examine whether the UK Courts' construction of patents is wider or narrower than previously.

Key points. The available data appear to suggest that there is little difference in outcome, whether the old Improver test is applied or the new Kirin-Amgen test; of more significance remains the nature of the wording of the patent claims themselves and the correct identification by the trial judge of the invention underlying the patent.

Practical significance. By eschewing a literal approach and refining the test used in order to ensure both compliance with the EPC and consistency with courts in other European countries, the UK Courts continue to provide an attractive forum for resolution of patent disputes.

Journal Article.  3113 words.  Illustrated.

Subjects: Arbitration ; Intellectual Property Law

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