NL - Intervet v. Merial

Intervet v. Merial, accelerated invalidity proceedings, The Hague District Court, The Netherlands, 9 December 2009, Docket No. 341571 / HA ZA 09-2183, with thanks to Willem Hoyng, Howrey

The District Court of The Hague invalidates the Dutch part of three European Patents of Merial concerning the Post-Weaning Multisystemic Wasting Syndrome (PMWS) (a disease common in pigs) and vaccine technology.

Merial is liable for the damages caused by the descriptive seizures conducted at the Intervet premises (Art. 7 Enforcement Directive). The calculation of these damages will take place in separate follow-up proceedings  for the determination of damages.

An appeal has been filed.

Read the judgment (in Dutch) here. 

Read the judgment (in English) here.

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Merial has sued Intervet in the Netherlands for infringement of three of its patents concerning the PCV-2 virus and vaccine technology: EP1281760 (for isolated type 2 porcine circoviruses or PCV-2), EP1386617 (for diagnostic methods and vaccines based on type 2 porcine circoviruses) and EP1033995 (for the use of whole or disrupted insect cells as adjuvant for antigens).

Merial was also granted leave to conduct a descriptive seizure at the Intervet facilities, where documents, electronic data and samples relevant to the infringement were obtained by a bailiff and placed in judicial deposit. Intervet entered invalidity proceedings against Merial's patents and claimed damages for the descriptive seizure.

The Court ruled that the EP1281760 and EP1386617 patents are not inventive over the prior art document 'Nayar', in which document the Court read sufficient pointers and enablement to isolate the PCV-2 virus. After isolation of the new virus type, the Court considered, sequencing its DNA and providing antibodies and vaccines were merely routine steps for the man skilled in the art.

 

The Court ruled that the EP1033995 patent is not novel over the prior art document 'Bachmann', in which document the Court found disclosure of the use of disrupted insect cells to enhance the immunogenic effect of the composition. Merial entered an auxiliary request with reworded claims, in which the insect cells used were obtained by infection of insect cells by a baculovirus after which the baculovirus was inactivated by means that would not destroy the adjuvant property of the cell debris or denature the antigen. The Court ruled that Bachmann also disclosed inactivation of the baculovirus and that thae choice of inactivation means so as not to destroy or denature the necessary qualities was obvious.

Intervet's requests were granted: all three patents were invalidated and parties were referred to separate proceedings to calculate the damages to be paid by Merial  to Intervet for for the descriptive seizure, which was based on the patents just invalidated.

Merial was also ordered to pay the costs of these nullity proceedings, agreed by parties to be EUR 275 000.

An appeal has been filed.