A mere collocation

The Full Federal Court (Finn, Bennett and Middleton JJ) has allowed an appeal against the grant of an interlocutory injunction which prevented Smith & Nephew entering the market .

The interlocutory injunction had been granted on the basis of a threatened infringement of claim 49 – apparently, only infringement of claim 49 had been pursued for the purposes of the interlocutory injunction.

Claim 49 was for:

An apparatus for applying negative pressure to a wound beneath a fluid-impermeable seal comprising: a screen means for positioning beneath said seal for preventing overgrowth of tissue in the wound, said screen means being sufficiently porous to allow gases to reach the wound and sufficiently rigid to prevent wound overgrowth, said screen means comprising an open cell polymer foam section configured to overlie the wound such that said negative pressure is maintained within said foam and applied to the wound; a flexible tube having an inlet and inserted into said open cell polymer foam section and an outlet end for extending from beneath said seal and for supplying said negative pressure; and wherein said apparatus is in an aseptic package.

The Full Court considered that all of the integers interacted in combination, save for the aseptic package. The aseptic package, while an essential integer, did not interact with the other integers in any meaningful way to produce negative pressure on a wound

25 There is no doubt that claim 49 is a claim to a combination. The question is whether each of the integers of the claim interact to produce negative wound pressure. It is to be asked how, if at all, does the aseptic package interact with the other integers to produce the result of negative wound pressure. It is the mere bag in which the device that ‘does the work’ is stored before use. It is discarded before any negative would pressure is applied. No doubt it is beneficial to have sterile packaging for a therapeutic device, however, the aseptic bag itself does nothing to cause, limit or affect the functional result of negative wound pressure as desired.

Accordingly, the claim was for a “mere collocation” and so was invalid.

Smith & Nephew Pty Ltd v Wake Forest University Health Sciences [2009] FCAFC 142

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