UK - Dr Reddy’s Laboratories v. Eli Lilly and Company Limited / Olanzapine

Dr Reddy’s Laboratories (UK) Limited v. Eli Lilly and Company Limited, Court of Appeal (Civil Division), UK, 18 December 2009, Docket No: Case No.A3/2008/2966, with thanks to Robert Fitt, Bristows

The Court of Appeal upheld the decision of Mr Justice Floyd and confirmed that Lilly’s (selection) patent concerning the drug olanzapine is valid.

Olanzapine is one of the 10¹⁹ compounds and one of the 86,000 preferred compounds mentioned in the '235 patent. It is not mentioned specifically. Dr Reddy's Research Laboratories (DRL) contention that the specific compound lacks novelty, was rejected (i) as a matter of a priori reasoning (a generalised prior description does not disclose a specific matter within it) and (ii) because it is inconsistent with EPO Board of Appeal Case Law (Hoechst Enantiomers T 0296/87).

The pre-EPC rules, as formulated in I.G. Farbenindustrie's Patents should be regarded as part of legal history, not as part of the living law. The better approach is to see what the EPO Boards do (AgrEvo (T 0939/92) and Wyeth (T133/01). "The EPO jurisprudence is founded firmly around a fundamental question: has the patentee made a novel, non-obvious technical advance and provided sufficient justification for it to be credible?" An 'arbitrary selection' provides no technical contribution.

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The patent in view of the prior art does not indicate a mere arbitrary selection (the problems identified by the patent have nothing to do with selecting from a wider class in '235 and one cannot say that a particular compound out of a vast class is obvious if one has no real idea as to how any individualised member of that class might behave).

Also no obviousness in light of Chakrabarti 1980.

Jacob LJ does not find it necessary to refer to any of the other parallel national decisions (except for the one of the German Supreme Court) and is glad that he reached the same conclusions as the BGH. "Different courts in Europe do reach the same conclusions- even though, perhaps understandably, the rarer cases where they differ get more publicity."

Read the judgment (in English) here.