However, although that might be persuasive, one also needs to read the claims in the context of the specification which might indicate otherwise.
Lord Sumption observed that the issue of numerical limitations would be considered by the Court in the context of question 3 of the Actavis v Eli Lilly questions - the parties may have deliberately indicated a range with precision.
Sir Robin first asked lawyers in the audience to respond with a show of hands - has the decision in Actavis v Eli Lilly improved the law?
It seemed to the author that a small but significant majority of lawyers attending think that the decision has not improved the law (although there were many abstainers).
The Court of Appeal had found that there was infringement, even though the amount of silver in the infringing product was higher than that specified in the claims.
There is an argument that where a patentee has defined their monopoly in a claim by 'book-ending' a range with two numerical limits, the patentee does not intend to go beyond that specified range.
Different decisions from different Courts often turn on the evidence, sometimes on the procedural rules (which may not be desirable, but is nevertheless what happens), and also on an appreciation of the facts in the case.
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From a German perspective, Judge Meier-Beck recognised that the Do E has a very narrow role in claims with numerical ranges, but it is not excluded.
What role should the file history have in the Do E, and should examination of the file history be confined to the patent office of the jurisdiction in question?