initiated or caused by a primary lesion or dysfunction in “Pain the nervous system. see also Neurogenic Pain and Central Pain. Peripheral Note: neuropathic pain occurs when the lesion or dysfunction affects the peripheral nervous system. Central pain may be retained as the term when the lesion or dysfunction affects the central nervous system.” As the judge observed subsequently in the abuse judgment, through no fault of his own, he had misquoted this definition in paragraph 50 of the main judgment by building into the definition a distinction between the central and peripheral nervous system. However, the distinction between peripheral neuropathic pain and central pain is made in the Note which follows immediately from the definition, so the judge concluded that the error was not material. The further reasons for rejecting Warner-Lambert’s construction of claim 3 were in summary the following: The expression pain" appeared to be used quite generally in the “neuropathic specification and there was no reference to peripheral neuropathic pain, still less any indication that central neuropathic pain was not intended to be included. The only basis for the construction was the sentence in paragraph [0006] which stated that neuropathic pain caused by injury or infection of “is peripheral sensory nerves”. This was a correct statement whichever construction was adopted. Furthermore the final sentence of the paragraph, which stated that neuropathic pain but is not limited to pain caused “includes, by nerve injury such as, for example [DPN]" was clearly non-limiting language. The patent contained specific subsidiary claims to phantom limb pain and fibromyalgia pain which the judge concluded (see below) were regarded as ones involving central neuropathic pain. Much of Warner-Lambert’s remaining answer to the insufficiency case depended on showing that the skilled person would, based on his common general knowledge, understand the patent to be disclosing a principle of wide application. Thus, as the patent specification itself did not expressly state what this principle was, it was necessary for Warner-Lambert to establish that the skilled person would be able to make the necessary inferences in the light of his or her common general knowledge. The judge summarised Warner-Lambert’s case in relation to the common general knowledge as follows. central sensitisation was recognised to be a common “(i) mechanism in many pain states; ii) it was known that central sensitisation was a component in both neuropathic pain and inflammatory pain; and
“Pain initiated or caused by a primary lesion or dysfunction in the nervous system. Note: see also Neurogenic Pain and Central Pain. Peripheral neuropathic pain occurs when the lesion or dysfunction affects the peripheral nervous system. Central pain may be retained as the term when the lesion or dysfunction affects the central nervous system.” As the judge observed subsequently in the abuse judgment, through no fault of his own, he had misquoted this definition in paragraph 50 of the main judgment by building into the definition a distinction between the central and peripheral nervous system. However, the distinction between peripheral neuropathic pain and central pain is made in the Note which follows immediately from the definition, so the judge concluded that the error was not material. The further reasons for rejecting Warner-Lambert’s construction of claim 3 were in summary the following: The expression “neuropathic pain" appeared to be used quite generally in the specification and there was no reference to peripheral neuropathic pain, still less any indication that central neuropathic pain was not intended to be included. The only basis for the construction was the sentence in paragraph [0006] which stated that neuropathic pain “is caused by injury or infection of peripheral sensory nerves”. This was a correct statement whichever construction was adopted. Furthermore the final sentence of the paragraph, which stated that neuropathic pain “includes, but is not limited to pain caused by nerve injury such as, for example [DPN]" was clearly non-limiting language. The patent contained specific subsidiary claims to phantom limb pain and fibromyalgia pain which the judge concluded (see below) were regarded as ones involving central neuropathic pain. Much of Warner-Lambert’s remaining answer to the insufficiency case depended on showing that the skilled person would, based on his common general knowledge, understand the patent to be disclosing a principle of wide application. Thus, as the patent specification itself did not expressly state what this principle was, it was necessary for Warner-Lambert to establish that the skilled person would be able to make the necessary inferences in the light of his or her common general knowledge. The judge summarised Warner-Lambert’s case in relation to the common general knowledge as follows. “(i) central sensitisation was recognised to be a common mechanism in many pain states; ii) it was known that central sensitisation was a component in both neuropathic pain and inflammatory pain; and