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The Court of Appeal had found that there was infringement, even though the amount of silver in the infringing product was higher than that specified in the claims.There is an argument that where a patentee has defined their monopoly in a claim by 'book-ending' a range with two numerical limits, the patentee does not intend to go beyond that specified range.Sir Robin first asked lawyers in the audience to respond with a show of hands - has the decision in Actavis v Eli Lilly improved the law?It seemed to the author that a small but significant majority of lawyers attending think that the decision has not improved the law (although there were many abstainers).Next, Sir Robin asked patent attorneys in the audience to respond to the same question - here, a more sizeable majority thought that the decision has not improved the law.Sir Robin rounded the event off by giving Lord Neuberger a speech to mark his retirement from the UK Supreme Court.If you accept the limitation, you have to live with that limitation.The Actavis case would have been pretty clear in the US - the argument on equivalents would not have survived the prosecution file history estoppel. Judge Kalden said that we do not have the UPC at the present time, but harmonistaion has been achieved to a great extent.

The purpose of the article is to offer a critique of ET based on recent cognitive research and to offer suggestions for updating the model to reflect new knowledge.

Judge O'Malley explained that typically there is a very good reason why a patentee has specified numerical limitations - to avoid prior art.

She suspected that this is why she does not see many Do E cases involving numerical limitations, but there are exceptions, and the Do E could extend a claim slightly beyond numerical limits, provided there is no prior art issue.

In the Actavis v Eli Lilly case, the US Court would not have been able to say that the examiner was wrong to insist on a limitation to pemetrexed disodium.

In the US, if the examiner requires a limitation, you have the choice to either challenge that decision of the examiner at the relevant time, or accept the limitation.