Legal Updates

Commercial – Pharmaceuticals – Patent – Failed Appeal

An appeal by three companies, (Arrow Generics, Generics UK and Teva UK) has recently failed. Their appeal to have a high court ruling overturned has been rejected.

The decision in question stated that the key claims of a patent (EP (UK) 0347066) which protects Lundbeck’s Cipralex (Escitalopram) Antidepressant are not invalid for lack of novelty or obviousness. The three companies in question believed that they were. In addition, the Court of Appeal also overturned a high court ruling from May 2007 that stated that two of the patent’s claims were invalid for insufficiency.

The Court of Appeal panel was lead by Lord Hoffmann. The panel overturned the high court’s ruling of insufficiency:

“In an ordinary product claim, the product is the invention… It is sufficiently enabled if the specification and common general knowledge enables the skilled person to make it…“.

The panel noted that the high court based its insufficiency decision on a House of Lords ruling in Biogen v Medeva [1997]. Lord Hoffmann stated that that ruling could not be deemed to be extended to include ordinary product claims:

“…In which the product is not defined by a class of processes of manufacture... Biogen should not be read as casting any doubt upon the proposition that an inventor who finds a way to make a new product is entitled to make a product claim, even if its properties could have been fully specified in advance and the desirability of making it was obvious.”.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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