EPLAW Patent Blog

BE - Belgian Supreme Court prohibits fishing expeditions

Ineos Manufacturing Belgium NV and Ineos Services Belgium NV / Chevron Phillips Chemical Company LP, Belgian Supreme Court, 26 November 2009, Docket number C.08.0206.N

'Beslag inzake namaak / saisie contrefaçon' – Interpretation of Article 1369bis/1 of the Belgian Judicial Code and Articles 2 and 7, al. 1 of the Enforcement Directive – Interpretation of the term “indications of infringement” – process patent (polymer manufacture)

An “indication of infringement” should be interpreted to mean that the party requesting a 'saisie' needs to submit data which make it plausible that an infringement of its intellectual property right could be taking place. The data thus submitted should, on their own or in connection with each other, be of such a nature that, when assessed prima facie (at first sight), they raise a suspicion of infringement or a threat of infringement.

The Antwerp court of appeal was wrong to conclude that the following facts, alone or in combination, were indications of infringement by Ineos of Chevron’s patents:

DK - Lundbeck v. Pharma Change & Actavis

Lundbeck a/S vs. Pharma Change Aps & Actavis A/S., Danish Enforcement Court of Helsingor, 26 November 2009, Docket No. FS FO-9921/2009, with thanks to Anders Valentin, Horten

After having initially filed an application for an inter partes injunction prohibiting the wholesaler Pharma Change Aps to sell or use a pharmaceutical containing a specific API (Active Pharmaceutical Ingredient), if manufactured pursuant to a certain Lundbeck process patent, Lundbeck subsequently filed an application for an ex parte injunction. Actavis A/S intervened, claiming that an injunction would also prevent its distribution of its generic version of that same pharmaceutical.

The enforcement court first turned down the application for a temporary (i.e. until such time as an inter partes application could be heard) ex parte injunction, stating that such  a remedy lacks legal basis in the Danish Administration of Justice Act. Secondly, even though another enforcement court had ruled in favor of Lundbeck in a similar case, the court decided that that ruling did not have legal force in the present case. And thirdly, the court ruled that in order for the court to grant an ex parte injunction, a clear infringement of Lundbeck’s patent rights must have been shown. The court did not find that Lundbeck had lifted the burden of evidence sufficiently and so the application for an ex parte injunction was turned down. The decision is under appeal and dates have been set for an inter partes hearing of the application for an injunction.

 

UK - LEO Pharma v. Sandoz Limited / Appeal

LEO Pharma A/S and LEO Laboratories Limited v. Sandoz Limited, invalidity proceedings, High Court of Justice, Court of Appeal (Civil Division), UK, 17 November 2009, Docket No. No: A3/2009/131, with thanks to Marc Döring and Rowan Freeland, Simmons & Simmons

Unusual obviousness attack (that is, where the skilled person would have come upon the invention without any expectation of successfully finding a better product) should be scrutinised with great care.

Referring to Biogen the Court of Appeal states about obviousness that "the Judge’s conclusion must be reached as an overall assessment of the relevant evidence, both technical and non-technical. If he has made such an assessment, weighing all the factors involved, then it will be difficult indeed to show that he has made an error of principle."

LEO Pharma's patent was upheld.

Read the judgment (in English) here.

Read the judgment in first instance (in English) here.

Read an extended summary here (provided by Marc Döring and Rowan Freeland who represented LEO Pharma).

ES - Janssen v. Teva - Galantamine / Interim Injunction Appeal

Janssen Pharmaceutica NV & Janssen-Cilag, S.A. v.Teva Genéricos Española, S.L., Court of Appeal (28th Section), Madrid, Spain, 16 November 2009, Docket No. 184/09

Section 28 of the Court of Appeal of Madrid has recently confirmed the first instance decision ordering Teva Genéricos Española (Teva) to temporarily refrain from commercializing in Spain generic drugs with the active compound galantamine for the treatment of Alzheimer and related diseases.

Janssen had brought legal actions against Teva for the infringement of the SPC no. C 20010009, which, expiring on 15 January 2012, had been granted over the basic patent EP 236684, validated in Spain as ES 2000428. Said patent (and accordingly its SPC) protects the use of the compound galantamine, or a pharmaceutically acceptable acid addition salt thereof -which is the active compound of Janssen's Reminyl® product- to prepare a medicinal product for the treatment of Alzheimer and related diseases.

FR - S.A. GenOway v. S.A. Cellectis

S.A. GenOway v. S.A. Cellectis, termination of license agreement, Tribunal de Grande Instance, Paris, France, 12 November 2009, Docket No. 09/00768, with thanks to Pierre Véron, Véron & Associés

Genoway failed to fulfill its contractual obligations by going beyond the rights that had been granted to it and by not complying with a marking obligation that cannot be considered as accessory or pointless. These only failures constituted for Cellectis legitimate grounds to implement the agreement’s termination clause. The existence of a legitimate ground excludes bad faith.

No disparagement act by Cellectis by informing Genoway customers of the legal situation.

Genoway had no ground to calculate the royalty amount only on one of the steps of the transgenic mouse production process by homologous recombination and to limit the patent scope to the knock-in replacement process. Accordingly, Cellectis can validly perform a new calculation of the royalties.

Read the judgment (in French) here.
Read the judgment (in English) here.

Exclusive jurisdiction Tribunal de Grande Instance (Paris)

With thanks to Pauline Debré, Bird&Bird

As of November 1, 2009, the Tribunal de Grande Instance in Paris (the first instance court) has exclusive jurisdiction for all patent actions brought in France.

The change results from of Decree n° 2009-1205, which was issued on October 9, 2009. The Decree applies to patents, utility certificates, supplementary protection certificates (SPC) and topographies of semiconductor products, and is also applicable to the procedure of “saisie-contrefaçon”.