By Evarist Baimu Nyaga Mawalla - Home

a. patents in 1953 (Lowe) and 1954 (Higgins). The invention claimed byCyanamid thus consisted of the discovery of a new use for a knownsubstance. On 5 th March 1973 Cyanamid started a quia timet actionagainst Ethicon for an injunction to restrain the threatened infringementof their patent by supplying sutures made of XLG to surgeons in theUnited Kingdom. On the same day they gave notice of motion for aninterlocutory injunction. Voluminous affidavits and exhibits wereb. filed on behalf of each party. The hearing of the motion before Graham Jlasted three days. On 30 th July 1973 he granted an interlocutory injunctionon the usual undertaking in damaged by Cyanamid Ethicon appealed tothe Court of Appeal. The hearing there took eight day. On 5 th February1974 the Court of Appeal gave judgment. They allowed the appeal anddischarged the judge’s order Leave to appeal from that your LordshipHouse granted decision. It was estimated that the hearing in this House ofthe appeal at which leave to accuse more affidavit evidence was to besought would last 12 days. The question whether the use of XLG as anabsorbable surgical suture is an infringement of Cyanamid’s patentdepends on the meaning t be given to the three words apolyhydroxyacetic not only in narrower meaning of a homopolymer ofwhich the units in the chain. Apart from the end stabilizer, consisted solelyof glycolic radicals but also in the broader meaning of copolymer of whichup to 15 per cent of the units in the chain would be lactate radicals; andthat what was said in the body of the patent made it clear that in thewords were used in this wider meaningc. Ethicon’s first contention is that the words a polyhydroxyaceti ester in theprincipal claim bear the narrower meaning only viz that they are restrictedto a homopolymer of which all the units in the chain except the endstabilizers consist of glycoside radicals. In the alternative, as commonlyhappens where the contest is is between a narrower and a widermeaning in a patent specification they attack the validity of the patent, if itbears the wider meaning on the grounds of inutility insufficiency unfairbasis and false suggestion. These objection are really the obverse of theirargument in it of the narrower construction. They are all different ways ofsaying hat if the claim is construed widely it includes copolymers whichwill not have as servile sutures the characteristics described in the body ofthe patent. Ethicon also attack the validity of the patent on the ground ofobviousnessd. Both Graham J and the Court of Appeal feat constrained by authority todeal with Cyanamid claim to an interlocutory injunction by considering firstwhether on the whole of the affidavit evidence before them prime faciecase of infringement had been made out. As Russell LJ put it in theconcluding paragraph of his reasons for judgment with which the othermember of the court agreede. I there be of prima facie case on the point essential to entitle the plaintiffto complain of the defendant’s proposed activities that is the end of theclaim to interlocutory relief prima facie case any in same being used by301