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On 14 November, Dr Matt Fisher presented a paper entitled 'Patents and Equivalents: Words Aren't Walls - A Modest Defence of Taking the Pith' at , the Centre for Intellectual Property and Information Law, University of Cambridge.

The paper examines how the Supreme Court, in , ushered in a new era in patent claim interpretation. The case marked an explicitly radical expansion of the patent’s reach through adoption of a doctrine of equivalents: a doctrine that extends protection outside of the language chosen by the patentee when defining their invention to also cover 'immaterial variants' from the invention defined in the claims. This change has provided a platform for dis-amalgamating (although not disconnecting) the interpretation of claim language from the scope of a patent’s monopoly.

Dr Fisher's paper examines how, by moving away from the previous entrenched position in which the claims formed an impermeable membrane through which questions of scope could not pass, one of the last bastions of Lord Hoffmann’s influence in the field of documentary interpretation has been stormed and laid open to the elements. Purposive construction as we knew it is dead. The era in which context was King and decisions could be reached based on a common sense understanding of language and its effects, where equivalents could only be taken into account as part of the background knowledge of the person skilled in the art, has been replaced (for now at least) with a different regime. To say that this new approach is contentious is an understatement. To its opponents, it explicitly extends protection outside of linguistic boundaries and into a no-man’s-land of uncertainties: uncontained by language, a Pandora’s Box of possibilities awaits. How then to distinguish what is protected from what is public: what is inside from what is outside the patentee’s monopoly?

The Supreme Court’s solution, their guide to equivalency, was to refine and reconfigure a test with solid pedigree in the field of purposive construction itself: an improved set of Improver questions therefore now sets the scene for extension outside of the claim. In his talk, Dr Fisher explained why accepting the concept of equivalency need not herald uncertainty, but nevertheless why the Supreme Court’s approach to the question leaves much to be desired.

Dr Fisher's articles have attracted international attention, have been cited before the Supreme Court on a number of occasions, including in oral argument in Actavis v Ely Lilly [2017] UKSC 48,

Click for more information on the talk.