EPLAW Patent Blog

SE - Vanserum Vision AB v. SICK IVP AB / Invalidity and Infringement

Vanserum Vision AB v. SICK IVP AB, Stockholm District Court, Stockholm, Sweden, 5 February 2010, Cases No. T 1966-07 and T 22033-07 (joint cases)

The Stockholm District Court dismissed an invalidity claim raised by Vanserum Vision AB (‘Vanserum’) against the Swedish patent 501 650 in relation to patent claim 3, but approved Vanserum’s action in relation to patent claims 2 and 8. The ‘650’ patent was granted for a device, used within the sawmilling- and carpentry industry. The invention detects defects in wood through a specific combination of line-shaped light sources. 

BE – Du Pont et al. v. Mylan / Losartan SPC (Appeal)

Du Pont et al. / Mylan, Losartan SPC, decision in summary proceedings (appeal), Brussels Court of Appeal, 23 February 2010, Case No. A.R. nr. 2010/KR/53

According to the Brussels Court of Appeal, the scope of protection of the SPC for the active ingredient Losartan does not, at first sight (“prima facie”), extend to a generic version of the medicinal product Cozaar Plus® (containing the active ingredients Losartan and HCTZ) under Article 4 of the SPC-Regulation.  The main reason raised by the court is that, since the combination of Losartan and HCTZ was itself protected by an SPC, a medicinal product containing that combination could not infringe the SPC for Losartan alone.  According to the court, this would appear to run counter with Articles 3(c) and (d) of the SPC-Regulation.

Read the decision (in Dutch) here.
Read the decision (in English) here.

UK - Intervet UK Limited v Merial & Others

Intervet UK Limited v Merial & Others, High Court of Justice, Chancery Division, Patents Court, London, UK, 23 February 2010, Case No. [2010] EWHC 294 (Pat), with thanks to Richard Willoughby, Howrey

Today, the approved judgment of Mr Justice Arnold has been published regarding the UK aspect of a number of associated actions concerning the Defendant's European patent entitled "Method for the in vitro diagnosis of type II porcine circovirus infection and diagnostic reagents" (the "Patent").  In summary, the Defendants alleged that Intervet had infringed claim 18 of the Patent by making a vaccine know as Porcilis PCV.  Intervet denied infringement, and sought revocation of the Patent.  Mr Justice Arnold has held that the Patent is invalid and must be revoked for reasons of obviousness, and made reference to the Dutch court's conclusions on this point in his judgment.  Mr Justice Arnold further held that, in any event, Intervet had not infringed claim 18.

Read the judgment (in English) here.

Read the post re the parallel Dutch case here.

EPO - Enlarged Board of Appeal decides on dosage regime - Swiss-type claims no longer available

EPO, Enlarged Board of Appeal, 19 February 2010, Decision No. G 02/08 - Dosage regime/ABBOT RESPIRATORY

The Enlarged Board of Appeal (EBA) answered the questions referred to it in T 1319/04 (OJ EPO 2009, 36) as follows:

Question 1:

Where it is already known to use a medicament to treat an illness, Article 54 (5) EPC does not exclude that this medicament be patented for use in a different treatment by therapy of the same illness.

Question 2:

Such patenting is also not excluded where a dosage regime is the only feature claimed which is not comprised in the state of the art.

Question 3:

Where the subject matter of a claim is rendered novel only by a new therapeutic use of a medicament, such claim may no longer have the format of a so called Swiss-type claim as instituted by decision G 5/83. A time-limit of three months after publication of the present decision in the Official Journal of the European Patent Office is set in order that future applicants comply with this new situation.

EPO - G 04/08 Enlarged Board / Language of Proceedings

EPO, Enlarged Board of Appeal, 16 February 2010, Decision No. G 04/08

If an international PCT application has been filed and published in one of the official EPO languages, it is not possible to (upon entry into the European phase) file a translation of the application in one of the two other languages. The EPO bodies may not use themselves in the written procedure one of the official EPO languages other than the official language that was used for the application (Art. 14(3) EPC).

Read the decision (in French) here.

Read a summary in English (provided by Bardehle Pagenberg) here.

UK - Actavis UK Limited v Novartis AG

Actavis UK Limited v Novartis AG, High court of Justice, Court of Appeal (Civil Division), London, UK, 17 February 2010, [2010] EWCA Civ 82

The Court of Appeal has dismissed Novartis's appeal against the High Court's decision that its European Patent EP0948320, claiming a sustained release formulation of fluvastatin, a drug used to treat high cholesterol, was invalid for obviousness. In its appeal, Novartis submitted that a reformulation of the problem identified in their patent, would have resulted in the skilled person viewing the basis of the invention as a problem. The evidence however, showed that fluvastatin was itself widely known before the patent application, and that a number of standard production methods for a sustained release formulation would work.

Favouring the multifactorial approach for assessing Art 56 EPC obviousness laid down in Pozzoli, Jacob LJ dismissed the appeal, finding the patent invalid for lack of inventive step. He disagreed with Warren J that the case was finely balanced, stating that, "once the basis of the patent was proved illusory there was nothing left to save it." Jacob LJ favoured English jurisprudence over the "two-bite" approach allowing for consideration of obviousness under the EPO problem/solution approach. In Jacob LJ's opinion, the problem/solution approach does not adequately deal with cases where the invention involves perceiving that there is a problem.

Read the judgment (in English) here.

EPO - G1/07 Enlarged Board decides on "methods for surgery" exception ex Art. 53(c) EPC

EPO, Enlarged Board of Appeal, 15 February 2010, Decision No. G 1/07

The Enlarged Board of Appeal decides on scope of exception to patentability for inventions related to surgery.
Not excluded as surgical treatment are:

- Insignificant physical interventions
- Imaging methods to be used during surgery
- Methods only concerning the internal operation of a device

Read the decision (in English) here.

Read a summary in English (provided by Bardehle Pagenberg) here.

BE - Du Pont et al v. Mylan / Losartan SPC (first instance)

Du Pont et al. / Mylan, Losartan SPC, decision in summary proceedings (first instance), Pres. Brussels Commercial Court, 12 February 2010, Case No. R.K. 00014/2010

According to the President of the Brussels Commercial Court, the scope of protection of the SPC for the active ingredient Losartan, whose duration had been extended pursuant to Article 36 of the Paediatric Regulation 1901/2006, does not at first sight (“prima facie”) extend to a generic version of the medicinal product Cozaar Plus® (containing the active ingredients losartan and HCTZ). 

The main reason raised by the court is that, since the paediatric extension was applied for and granted only for the Losartan-SPC and not for the separately obtained “Losartan + HCTZ”-SPC, the combination product Cozaar Plus®” could not benefit from the paediatric extension of the Losartan-SPC.  Consequently, generic versions of Cozaar Plus® could not fall under the scope of protection of the Losartan-SPC either.

Read the decision (in Dutch) here.

Read the decision (in English) here.

UK - Eli Lilly v Human Genome Sciences Inc / Appeal

Eli Lilly and Company v. Human Genome Sciences inc, High court of Justice, Court of Appeal (Civil Division), London, UK, 9 February 2010, Case No. [2010] EWCA Civ 33

The English Court of Appeal dismissed HGS's appeal against the decision that HGS's patent, which related to a protein it called Neutrokine-α, was invalid.  It held that the invention was not "susceptible of industrial application" so as to satisfy the requirements of Article 57 EPC.  Specifically, the fact that numerous different - in some cases contradictory - possible applications of Neutrokine-α were claimed in the patent pointed to the conclusion that the claims were purely speculative.  Moreover, while Neutrokine-α belonged to a superfamily of proteins which shared certain properties, members of this superfamily had differing, sometimes unique, characteristics and only one member has been found to have any therapeutic application. 

This decision was contrary to that given earlier in parallel EPO proceedings.  Jacob LJ noted that the different decisions resulted from two different readings of the facts, rather than any issue of law.  In such circumstances the Court was not bound to follow the EPO's conclusions.

Read the judgment (in English) here.

FR - Teva v. Sepracor / Invalidity (Enantiomers)

Teva Classics SAS, Teva Sante SASU and Teva Pharmaceutical Industries Ltd v. Sepracor Inc, invalidity proceedings (enantiomers), Tribunal de Grande Instance, Paris, France, 6 October 2009, Docket No. 07/16446, with thanks to Pierre Véron, Véron & Associés

Cetirizine is a chiral molecule likely to exist in the form of two enantiomers, Levocetirizine (-) and Dextrocetirizine (+). The French first instance court invalidates the French part of Sepracor's European Patent 0 663 828 that relates to the use of Levocetirizine for the manufacture of a drug for treating allergic rhinitis or allergic asthma, for insufficient disclosure. On the same day the '828 patent was filed, Sepracor filed a patent application, which claims the use of dextrocetirizine (the (+) cetirizine enantiomer) for treating the same allergies and that it is completely identical to the other patent application except for a word.

The court rules that the absence of any mention of research and result proves the speculative nature of the patent application and, as a consequence, conceals the lack of inventive step. The existence of the 'sister' patent application of the patent in dispute in the view of the court moreover tends to establish that on the filing date of these patent applications Sepracor had no information to decide which one of the two enantiomers was the most efficient one (or had the least adverse effects), or even whether one of the two enantiomers was more efficient (or had less adverse effects) than the racemic form.

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