Gedeon Richter plc v Bayer Pharma AG [2012] EWCA Civ 235, [2012] All ER (D) 87 (Mar)
It was well established that the task for the court in considering the issue of added matter was first: (i) to ascertain through the eyes of the skilled addressee what was disclosed, both explicitly and implicitly in the application; (ii) to do the same in respect of the patent; and (iii) to compare the two disclosures and decide whether any subject matter relevant to the invention had been added whether by deletion or addition. The comparison was strict in the sense that the subject matter would be added unless such matter was clearly and unambiguously disclosed in the application. Second, it was appropriate to consider what had been disclosed both expressly and implicitly. Third, the idea underlying the prohibition was that an applicant should not be allowed to improve his position by adding subject matter not disclosed in the application, which would give him an unwarranted advantage and could be damaging to the legal security of third parties relying on the
