Being equitable about equivalents

Abstract

Has Lord Neuberger in Actavis introduced “an amorphous general inventive idea” test to determine UK patent infringement by equivalents? Are “inessential integers”, once found extremely rarely, now to be embraced as part of normal UK practice? Have UK patent claims become “a puzzle game”?

Lord Neuberger, clearly did not believe that he had changed UK law considerably with his decision in Actavis or that the decision would have a substantial impact. At a UCL conference5 following Actavis, he referred to Kirin- Amgen (the previous leading authority on infringement in which purposive construction was confirmed as the correct approach) as having been “slightly wrongly” decided. He also remarked upon “the relative infrequency with which equivalents are applied in other jurisdictions where they have been accepted.” However, having adopted an equivalency test, the point is coming up frequently in UK cases and those cases appear to be suggesting that the answers to some of the above questions are “yes”. Generalised ideas, inessential integers and puzzles have all become part of the landscape.