The recent case of Insulet v Roche demonstrates the breadth of patent case that can be heard using the shorter trials scheme. While the judge did not suggest that the case was not suitable for the scheme, it was certainly characterised as being at the outer limits of such cases.
In addition to being a fairly rare example of a patent litigation case in the shorter trials scheme, the decision is also noteworthy for the following reasons:
- It highlights the current trend in the UK for judges to request agreed statements of CGK (common general knowledge). Despite one not being filed before the hearing, the judge requested one following oral hearing.
- It confirms that regulatory constraints may be considered to be both technical and commercial in nature, and therefore may be relevant to the skilled person’s mindset.
- It provides further guidance on the doctrine of equivalents. In particular, when considering the first Actavis question, rather than identifying the inventive concept at a high or generalised level, it is necessary to have regard to means identified in the patent to achieve the result desired by the patentee.
The complexity of the issues and the number of areas of dispute raised during the cross-examination of the experts, and which then needed to be resolved, tested the outer limits of the time and procedures available under the Shorter Trial Scheme