Varian Medical Systems AG v Elekta Ltd & Anor, Court of Appeal - Patents Court, October 12, 2016, [2016] EWHC 2679 (Pat)

Resolution Date:October 12, 2016
Issuing Organization:Patents Court
Actores:Varian Medical Systems AG v Elekta Ltd & Anor
 
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Neutral Citation Number: [2016] EWHC 2679 (Pat)

Case No: HC-2015-000046

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

PATENTS COURT

The Rolls Building

7 Rolls Buildings

Fetter Lane

London EC4A 1NL

Date: Wednesday, 12th October 2016

Before:

MR. JUSTICE BIRSS

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Between:

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Transcript of the Stenograph Notes of Marten Walsh Cherer Ltd.,

1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP

Telephone: 020 7067 2900 Fax: 020 7831 6864 DX: 410 LDE

Email: info@martenwalshcherer.com

Website: www.martenwalshcherer.com

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MR. IAIN PURVIS QC and MR. BRIAN NICHOLSON (instructed by Bristows LLP) for the Claimant

MR. JAMES ABRAHAMS QC (instructed by Powell Gilbert LLP) for the Defendants

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MR. JUSTICE BIRSS:

  1. I have before me an application for disclosure which is one part of a larger dispute about disclosure and the product description, much of which I have resolved this morning mainly by arranging for an inspection.

  2. The outstanding matter relates to documents in two classes which are described in the application in subparagraphs (d) and (e) of the relevant document.

  3. In her first witness statement on this application (which is her second witness statement) Ms. Ward, for the claimants, describes the points relating to these documents. The documents relate to public statements made by the defendants about the capabilities of the machines in issue in this case. Those machines are MR-Linac machines (that is to say magnetic resonance imaging linear accelerator machines). The claimants believe the statements indicate that the defendants are going to launch, and are offering, a product which has a feature called "real time control". This aspect relates to a feature of the claim in the patent which has been described as the crucial feature.

  4. In essence the point of all this is that the invention is about a machine for use in radiotherapy in which a magnetic resonance imaging system is used to image the tumour which is receiving or is to receive the radiotherapy. The radiation beam comes from the linear accelerator. The invention provides for the control of the radiation beam in ``real time'' so that, for example, if the tumour moves a little bit, as compared to its location as specified in the treatment plan, the radiation beam can follow it.

  5. There is a substantial dispute between the parties about the nature of the machine which the defendants are currently building and whether it will or will not infringe this claim. I am not concerned with that. What I am concerned with are the public statements which are being made by the defendants which are described in the categories (d) and (e). Although not entirely accurate, a sufficient summary of the issue arising from the public statements for this purpose is that although they describe a machine as a real time machine or real time control machine, that should not be of any concern to the claimants because the...

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