The court ruled that the defendants' product does not infringe the plaintiffs' patent, due to the absence of essential claim features; the plaintiffs' patent remains valid.

JUDGMENT

Introduction

In this action, the plaintiffs are suing the defendants for infringement of Malaysian Patent No. MY-136823-A entitled "Spring Clip as Needle Tip Protection for a Safety Catheter" (the Braun Patent).

The plaintiffs' safety intravenous catheter products, "Introcan Safety", "Vasofix Safety" and "Vasoscan Safety" are claimed to practice the Braun Patent.

The allegedly infringing product is the 1^st defendant's safety intravenous catheter known as "Terumo Surshield Surflo 11" (the Terumo Product).

The defendants have raised a defence of non-infringement. In addition, the defendants counterclaim to invalidate for the reason that the invention of the Braun Patent is not a patentable invention under the Patents Act 1983 (the Act) .

The safety intravenous catheter product

To make the point under discussion easier to comprehend, it is useful to have an understanding of the product in question. The product that is the subject matter of this action is a safety intravenous catheter (IVC). An IVC is a product or device that is primarily used by health care workers to administer fluids directly into a patient's vascular system. The IVC comprises, among other components, a needle with a tip and a shaft.

The insertion procedure comprises 4 basic steps, namely:

a. The needle tip extending from the catheter tube penetrates the patient's vein;

b. The catheter is inserted into the vein over the needle tip by the health care worker pushing the catheter hub;

c. The health care worker then withdraws the needle leaving the catheter in the vein;

d. The health care worker then fastens the inserted catheter hub to the patient's skin, and connects the open end of the catheter hub to the source of the fluid to be administered into the patient's vein.

After the insertion procedure has been completed and the needle withdrawn from the catheter, an exposed needle tip can lead to an accidental or inadvertent needle stick injury, thereby exposing health care workers to a transmission of a multitude of dangerous blood borne pathogens.

The 1^st plaintiff's safety IVC and the Terumo Product are products devised to, among other objectives, automatically cover a needle tip when the needle is withdrawn from the catheter hub, to thereby prevent health care workers from accidentally sticking themselves with the needle tip.

The parties

The 1^st plaintiff is B. Braun Melsungen AG, a company incorporated under the laws of the Federal Republic of Germany. The 1^st plaintiff has its principal offices at Carl-Braun-Strasse 1, 34212 Melsungen, Federal Republic of Germany.

The 1^st plaintiff carries on business as, inter alia , manufacturer, distributor, supplier and exporter for the global healthcare market by supplying products for anesthesia, intensive medicine, cardiology, extra corporeal blood treatment and surgery, as well as services for hospitals, general practitioners and the homecare sector.

The 2^nd plaintiff is B. Braun Medical Supplies Sdn Bhd, a company incorporated in Malaysia.

The 1^st defendant is Terumo Kabushiki Kaisha, a company incorporated in Japan, having its principal offices at 44-1, 2-chome, Hatagaya Shibuya-ku, Tokyo, Japan. The 1^st Defendant manufactures and produces for sale a range of medical products including disposable medical products, that is, single-use products to eliminate the risk of infection due to re-use of medical supplies and to provide safety for both patients and medical staff.

The 2^nd defendant is Summit Company (M) Sdn Bhd, a company incorporated in Malaysia. The 2^nd defendant carries on business as a trading company which mainly supplies products for clinics, hospitals and general pharmaceutical use.

The trial

The trial of this action was heard in this Court on 1.11.2010 to 4.11.2010 and 8.3.2011 to 10.3.2011.

The Plaintiffs' evidence was led through 3 witnesses, namely Kevin Woehr (PW1); Mr Noel J.Akers (PW2) and Mr Lam Chee Hong (PW3).

The defendants ca